First Amendment

Different Types of Government Property for Speech

1) Public Forums 2) Designated Public Forums 3) Limited Public Forums 4) Nonpublic Forums

O'Brien Test (When the government may regulate conduct that communicates)

A government regulation is sufficiently justified if: 1) It furthers an important or substantial government interest, 2)If the governmental interest is unrelated to the suppression of free expression. 3) If the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of that interest.

Overbreadth

A law is unconstitutionally overbroad, if it regulates substantially more speech than the Constitution allows to be regulated.

Vagueness

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted.

Licensing and Permit Systems

A licensing or permit system is a classic form of prior restraint. The government can require a license for speech in public forums only if there is: 1) an important reason for licensing, 2) there are clear criteria leaving almost no discretion to the licensing authority, and 3)there are procedural safeguards such as requirements for prompt determination of license requests and judicial review of license details. A permit that meets ALL of these requirements will be allowed.

Unconstitutional Conditions Doctrine

A regulation that conditions a benefit, federal funds, on the requirement that the recipient forgo constitutionally protected speech is unconstitutional.

Strict Scrutiny

A state regulation will be upheld if it is necessary to achieve a compelling government interest.

Prior Restraint

Are generally unconstitutional. Prior restraints are judicial orders forbidding speech before it occurs.

Nonpublic forums

Are government properties that the government can close to all speech activities. The government may prohibit or restrict speech in nonpublic forums so long as the regulation is reasonable and viewpoint neutral.

Schad v. Borough of Mount Ephraim (Application of Overbreadth)

City ordinance, aimed at nude dancing, prohibited all live entertainment, which was overbroad because it included plays, concerts, and athletic events.

Commercial Speech

Commercial Speech has three characteristics: 1) It is an advertisement of some form, 2) It refers to a specific product, and 3) the speakers has an economic motivation for the speech. (Bolger v. Youngs Drug Products Corp.)

Compelled Speech (Government funding)

Conditions can be placed on government funding that you do not have the right to receive. (Rumsfeld v. Forum for Academic and Institutional Rights).

Defamation -NY Times v. Sullivan

Court lays out four requirements for recovery from the tort of defamation: 1) The plaintiff must be a public official or running for public office. 2) The plaintiff must prove his or her case with clear and convincing evidence. 3) The plaintiff must prove the falsity of the statement, and 4) The plaintiff must prove actual malice that the defendant knew that the statement was false or acted with reckless disregard for the truth.

City of Renton v. Playtime Theaters (Secondary Effects)

Discusses secondary effects as a justification for laws that are content-based on their face but are argued to be content neutral.

Private figures -Matters of Public concern

For defamatory speech not involving matters of public concern, defamation laws may allow plaintiffs to recover presumed and/or punitive damages without proving "actual malice".

Schneider v. New Jersey (Pamphleteering)

Government MAY regulate pamphleteering to preserve public safety and permit car and pedestrian traffic, but may not ban it to prevent littering.

Limited Public Forum

Government entities establish a limited public forum by opening property to "limited use by certain groups or dedicated solely to the discussion of certain subjects." In such a forum, a government entity may impose restrictions on speech are reasonable and viewpoint-neutral.

Profane and Indecent Speech

Government may not prohibit speech simply because others might find it offensive.

(Traditional) Public Forums

Government property that the government is constitutionally obligated to make available for speech, such as public streets, sidewalks and parks. "any restriction based on the content of speech must satisfy strict scrutiny, that is, the restrictions must be narrowly tailored to serve a compelling interest."

Content-Based Speech

Government regulations on speech, based on their content. Content based regulation is subject to strict scrutiny.

Content-Neutral Speech

Government regulations which affect all communications equally ,regardless of the message being communicated. Such regulations are evaluated under intermediate scrutiny.

The Lemon Test for the Establishment Clause

If the law is not discriminatory, the court should apply a three part test, the statute or legislation should have: 1) A secular legislative purpose 2) Its principal and primary effect must be one that neither advances no inhibits religion 3) The statute must not foster an excessive government entanglement with religion.

Secondary Effects

If there are secondary effects present for a law that is content-based on its face, the level of scrutiny does not have to be strict. If the government's purpose is preventing secondary effects of speech, the regulation will be justified.

Difference between designated public forum and limited public forum

In a 'designated public forum' the government must be both subject matter neutral and viewpoint neutral and must have an important interest in regulating; In a limited public forum the government need only be viewpoint neutral and the regulation must be reasonable.

The Brandenburg Test (Regulating speech advocating criminal conduct)

In order for speech advocating criminal conduct to be suppressed: 1) Express advocacy of law violation; 2) Advocacy that calls for immediate violation of the law, and 3) The immediate violation of the law must be likely to occur.

Freedom of Association

Is infringed if the government outlaws and punishes membership in a group.

Can the government selectively exclude certain speakers from a public forum?

No. Once the government opens up a forum for speech/assembly by some groups, it may not selectively prohibit others from using it, based on their speech's content. Their speech may be regulated by valid "time, place, and manner" restrictions, but they must be content neutral. (Police Department of the City of Chicago v. Mosley).

Near v. Minnesota (Prior Restraint Exceptions)

Outlines the test where prior restraints against publication will not be invalid: 1) To protect national security (must be a compelling need), 2) To protect fair trials, and 3) Seizing the assets of businesses convicted of obscenity violations

Right of Publicity

Protects the ability of a person to control the commercial value of his or her name, likeness or performance.

Intentional Infliction of Emotional Distress

Public figure/public officials cannot recover for intentional infliction of emotional distress from defamatory publications unless they prove: i) it contained false statements of fact, and ii)was made with "actual malice"

Test for Evaluating Regulation of Commercial Speech (Central Hudson)

Regulations affecting commercial speech do not violate the First Amendment: 1) The advertising is false, deceptive, or of illegal activities. 2) The government's restriction is justified by a substantial government interest. 3) law directly advances the government's interest. 4) The regulation of speech is no more extensive than necessary to achieve the government's interest.

Prohibitions on Compensation

The Court has declared unconstitutional a federal law preventing government employees from receiving monetary honoria for their off the job speeches and writings, even if they are totally unrelated to their work. Preclusion of payment is an infringement.

Freedom of Association (Regulation)

The Court has held that the government may punish membership only if it proves that: 1) a person actively affiliated with a group. 2) knowing of its illegal objectives, and 3) with the specific intent to further those objectives.

Court orders to protect a fair trial

The Court indicated requirements to be met to justify a gag order on the press to protect a defendant's right to a fair trial: 1) A showing that extensive publicity without prior restraint will jeopardize the ability to select a fair and impartial jury, 2) Measures short of an order restraining publication would not have insured the defendant

Fighting Words

The First Amendment does not protect "fighting words" which inflict emotional distress or tend to incite listeners to retaliatory violence.

Establishment clause

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".

Nude dancing (Low-value speech)

The Supreme Court has held that nude dancing is protected by the First Amendment, but the government may ban nude dancing if: i) Its intent is to prevent its secondary effects (rather than its content), and ii) Its regulation is rationally related to promoting legitimate state interests.

Gertz v. Welch

The court articulated the standard for defamation by private figures. If the plaintiff is a private figure and the matter is of public concern, a state can allow a plaintiff to recover compensatory damages of there is proof that the statements were false and of negligence by the defendant.

Reasonableness Approach (Regulating speech that advocates illegal activity)

The government can regulate speech that advocates illegality so long as the government's action is reasonable.

Compelled Speech

The government cannot compel silence or speech, whether verbal or symbolic, except to prevent "clear and present" danger of a crime.

Miller Test (Obscenity)

The government may regulate "obscene" material if: 1) Whether the work, taken as a whole, by the contemporary community standards appeals to the prurient interest. 2) The speech must be patently offensive. 3) And, the work taken as a whole must lack serious redeeming social, literary, political, scientific value.

The Risk Formula

The government may regulate speech without showing of likelihood or imminence of harm, if the harm is great enough.

When is conduct communicative?

There are two factors in concluding that conduct was communicative: 1) An intent to convey a specific message, and 2) There is a substantial likelihood that the message would be understood by those receiving it.

Ward v. Rock Against Racism (Time, place, and manner restriction)

Time, place, and manner restrictions are valid if they are: (i) content-neutral, (ii) serve "significant" government interests, (iii) leave ample alternative channels of communication, and (iv) are narrowly tailored

Time, Place, and Manner Restrictions

Time, place, and manner restrictions are valid if they: i) Are content-neutral, ii) Serve significant government interests iii) leave ample alternative channels of communication, and iv) are narrowly tailored.

Hostile Audience

When a speaker incites the audience to imminent riot or violence, the police may stop his speech.

Designated Public Forum

When government property that has not been traditionally regarded as a public forum, and is intentionally opened up for that purpose. Speech restrictions in such a forum are subject to the same strict scrutiny as restrictions in a public forum.

Employment Division v. Smith (Free Exercise Test)

Where an individual's conduct is motivated his religious belief. The state may regulate or prohibit the activity if the regulation is neutral in respect to religion and is of general applicability.

Must the government allow public places to be used for speech?

Yes. The government must allow public places to be used for speech, and can regulate access ONLY to ensure convenience and order. Police may not maintain order by CLOSING public place to speech.

Clear and Present Danger Test

[Schenck, Frowerk, Debs, Abrams] The First Amendment does not protect speech which is used under such circumstance or nature as to create a "clear and present" danger of inciting illegal activity. [test was abandoned].

Viewpoint neutral

means that the government cannot regulate speech based on the ideology of the message.

Subject matter neutral

means that the government cannot regulate speech based on the topic of the speech.

Intermediate Scrutiny

standard whereby the government regulation is deemed constitutional if: i) Advances important government interests, ii) Which is unrelated to prohibited interests (here, speech restrictions); and iii) Is no more restrictive than necessary to further legitimate government interests.

Free Exercise Clause

the constitutional provision prohibiting the government from interfering in people's religious practices or forms of worship.