First Amendment Fundies

US v. Playboy

Let's play indecently by the least restrictive means! FACTS: Sex cable channel scrambling problem. Telecommunications Act blocks during the day to protect children from signal bleed. Fails strict scrutiny as overbroad because tech exists to allow parents to block individually for each home. Compelling interest (protecting kids), but not least restrictive means.

obscenity

Miller (I don't even know her!): material, taken as a whole that 1) appeals to the prurient interest (shameful or morbid interest in nudity, sex, or excretion), 2) is patently offensive in light of community standards, and - EX: depictions of sexual acts or lewd exhibitions of the genitals constituted "plain examples" of patently offensive material. 3) lacks serious literary, artistic, political, or scientific value (last element viewed from national standard, other two, community)

Content-based speech Exceptions that receive less or no protection:

Obscenity incitement of illegal activity fighting words speech integral to criminal conduct (child pornography and threats/intimidation) commercial speech defamation

Young v. American Mini Theaters (1976)

Origin of "secondary effects doctrine" plurality opinion by Justice Stevens and a concurrence authored by Justice Powell upheld a Detroit zoning ordinance that dispersed adult movie theaters and bookstores throughout the city. Although the ordinance on its face treated businesses selling "sexually explicit" materials differently than other businesses, the fact that its JUSTIFICATION was to prevent the concentration of adult-oriented businesses in close proximity was sufficient, according to these Justices, to treat it as content neutral.

Roth v. United States (1957)

RAWNCHY ROTH Obscenity is not constitutionally protected under the freedom of speech or of the press. -Obscene material "deals with sex in a manner appealing to the *prurient interest - a shameful or morbid interest in nudity, sex, or excretion*." -Court reasoned that the contemporaneous existence of state laws criminalizing profanity when the First Amendment was ratified, the prevalent historical use of obscenity laws both in the United States and internationally, and the absence of ideas of the slightest social importance in the obscene supported the categorical exclusion of obscenity from First Amendment protection.

Prior restraint defined:

SCT: "administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." . •Even this definition leaves important questions unanswered. *Are administrative and judicial prior restraints distinguishable?*

Holder v. Humanitarian Law Project, (2010)

A federal law criminalizing giving educational support to help terrorist organizations become nonviolent was constitutional. Notice that, under Brandenburg, the plaintiffs' speech did not fall outside the protection of the First Amendment, as their speech was only directed to the lawful activities of the foreign terrorist groups. •Nonetheless, the Supreme Court still held that the government could criminalize the plaintiffs' proposed speech because of the need to do so in order to serve the compelling government interest in combating terrorism. Did such a compelling interest exist in Dennis?

Stanley v. Georgia, (1969)

Stanley can possess porn in Georgia! *Issue*: Whether a Georgia statute that criminalizes the private possession of obscene matter violates the First Amendment. HELD The First and Fourteenth Amendments prohibit the government from punishing the private possession of obscene material in one's home. •Rationale: the justifications for obscenity restrictions doesn't reach into the home because it mostly deals with the morals of society. If it's not out in the open, not in public, then the justifications for restrictions don't apply. •We should let people think, read, watch what they want to in their own homes. •No causation established between watching obscene films and criminal acts

Government speech issue 1: Government is providing funds on a selective basis to private speakers to transmit messages related to a government program.

The government is allowed to fund selective expressive activities which it believes to be in the public interest without funding opposing views. But govt *cannot condition the receipt of funds or other benefits on the recipient's relinquishment of constitutional rights when such a relinquishment is not necessary to achieve the program's objectives*. •So while the government can specify that public funds provided to a private organization for family planning counseling must not be used to promote abortion, the government cannot require the organization to support all government policies regarding public healthcare priorities to obtain the funding.

O'Connor endorsement test from Allegheny County?

The govt violates the EC if it endorses or disapproves of religion, judged from the perspective of a reasonable observer who possesses knowledge of the context and history of the action.Never commanded a majority of the court.

Two types of expressive conduct.

Traditional - typically involves words: parades, music, theater, etc. Inherently expressive - had intent to communicate message which was likely understood even without using words

Procedural Protections: Vagueness

Vagueness - *person of common intelligence would have to guess as to scope of regulation as to activities performed or intended to be performed* •Applies not just to speech, but criminal laws as well. *Two underlying concerns in vagueness:* *1) Fair notice* - in order for you to know how to comply your expression with a statute, you've got to know what the statute means, what it does *2) Selective enforcement* - especially important in free speech area. •Concern here is that if the statute is vague, allows police officers to decide who violates and who doesn't, which often depends on the officer's evaluation of the value of the viewpoint expressed. •NO 3P standing for Vagueness

Government speech

cannot be challenged as violating the first amendment, but is subject to the Establishment Clause. occurs when the government advances its own message in the First Amendment marketplace of ideas either through government officials or private speakers. •Government speech is thus not regulated by the judiciary under the First Amendment's free speech guarantee, but instead is predominantly regulated by the people through the political process. *ONLY LIMIT: Establishment Clause* •Although sometimes this distinction is self-evident, such as when a government official expresses a view through governmentally controlled channels, in other instances, such as in the government's funding or adoption of private expression, the distinction is fuzzy. •Government officials or agencies frequently engage in expression in an attempt to garner public support for government policies. •In other situations, the government funds or otherwise supports speech by private actors, but only on the condition that the expression of these private persons advances the government's position. •Such viewpoint-based funding and support is authorized when the government is itself the speaker because the government is ultimately "accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position." Board of Regents v. Southworth, 529 U.S. 217, 235 (2000).

R.A.V. v. St. Paul (1992)

govt cannot create content-based/viewpoint distinctions in unprotected categories of speech. FACTS: RAV and other teenagers burned a cross in a black family's yard. Violated statute that barred fighting words based on race. HELD: While the city could ban all fighting words, it could not create content based categories within fighting words based on race. RAV does allow some content-based regulation within a class of unprotected speech: *special virulence exception* - "When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of viewpoint discrimination exists." CAN BAN ONLY THE MOST EXTREME EXAMPLES OF FIGHTING WORDS, IOIA, OBSCENITY, ETC.

Bates v. State Bar of Arizona, (1977)

held that truthful, non-misleading lawyer advertising was indeed protected by the First Amendment. Under the First Amendment, a lawyer may not constitutionally be disciplined for advertising routine legal services.

Prior restraints have been called

"the most serious and least tolerable infringement on First Amendment rights." CONSIDERATIONS •*Historical* - Blackstone/Founders were primarily concerned with prior restraint. •The main purpose of free speech is to stop prior restraint •*Philosophical* - Holmes and the marketplace of ideas. •If you are restrained where you can't even get the idea out there, that's silence forever •If you can get the idea out there and convince people, then you can change ideas. •Silencing speech beforehand is worse than punishing after the fact. •*Prudential* - collateral bar rule and less procedural protections than criminal prosecution

PUBLIC EMPLOYEE SPEECH RETALIATION CLAIMS Current Framework - four step framework.

*1) Speech as a citizen, not pursuant to official job duties* - Garcetti, Lane, -Contextual analysis v. employer-mandated speech -There's still some problems and splits in courts; but most courts have adopted "contextual analysis" CONTEXTUAL ANALYSIS FACTORS: -Job description, day to day duties (most important), Where was expression made? (If made at work, less likely generally to be protected as speech as a citizen), Who was the audience?; Could a private citizen engage in a similar type of speech? *Alternative: "employer-mandated" speech approach* -- •only speech that is mandated by the govt (what they are paying you to do, like Garcetti). •Since the govt is paying you to engage in expression, it's not your own speech; you are a mouthpiece for the govt. *2) Speech on a matter of public concern* -- •Connick: in determining whether a matter is of public concern: •*Examine CONTENT, FORM, CONTEXT to see a matter of "political, social, or other concern to community*" *3) Pickering balance* -- •balance state interest in providing efficient governmental services versus individual and public interests in the speech at issue *4) Protected speech basis for the adverse employment action?* - BURDEN SHIFTING FRAMEWORK •Employee has burden to show a substantial motivating factor of why s/he suffered adverse employment consequence was due to protected speech --Question of fact. --Look at sequence of events. --Employer remarks. If employee had gotten great reviews then all the sudden reviews tank after the employee's speech •Burden shifting framework: If employee meets burden, then burden shifts to govt to show that employee would have suffered adverse action regardless of speech *Steps 1-3 are questions of law, 4 question of fact*

three factors to determine whether content-based or content-neutral

*1) TEXT* Does express language of statute treat speech differently? •EX: Does it treat sexually-oriented speech differently? *2) Justifications* are important in showing whether content based: •If the justification is based on the potentially harmful impact on the listener, shows that it is content-based. *3) As applied*: Can be neutral in text, but if the people enforcing only apply it when they don't like what's being expressed, it can be content based. If content based under any one of the above three, apply *strict scrutiny* - least restrictive means of achieving a compelling govt purpose

*GOVERNMENT FORUMS FRAMEWORK* - 3 Tiers Applies ONLY to Private Speech on Government Property

*1) Traditional public forums* - -traditionally opened up to expressive purpose. -A principal purpose of the property is expressive. •EX: streets, sidewalks, public parks *2) Designated public forums* - - govt opened it, can also shut it down. *TWO TYPES* *A) Unlimited designated public forum* - areas in which the govt has intentionally opened up for indiscriminate use of *EVERYONE* *B) Limited designated public forum* - areas in which the govt has intentionally opened up for indiscriminate use of *Certain subjects/groups* •EX: public schools allow people to use rooms, but schools can limit which groups have access to student groups, etc.; but random groups can't use. *3) Non-public forum* - •Expression is limited to the purposes of the forum •EX: courtroom. *TESTS*: *Public Forum OR WITHIN limited public forum" - use traditional tests -apply normal framework discussed previously (content based/neutral; etc) •*Nonpublic forum or outside parameters of a limited designated forum* (functionally the same thing) •Question: does the regulation/exclusion discriminate based on viewpoint? - taking one side of a debate (but it's okay to ban all viewpoints on an issue such as abortion) •If so, then apply strict scrutiny •If not, just has to be "reasonable" - look at similar factors to TPM, but more of a balancing test. What's govt interest, how well is it served, are the other channels? But much more deferential. Not even intermediate scrutiny. Maybe "rational basis with a bite" Key point: Govt CAN shut down a designated public forum, CANNOT do that with traditional public forum. This is one of the key differences between traditional and designated public forums.

Prior Restraints and Judicial Injunctions framework

*Administrative or Judicial Order?* *Judicial Order* - Subject to collateral bar rule (Walker) *Administrative Order* - NOT subject to collateral bar rule (Shuttlesworth) *Based on content and exercise of discretion?* •YES: Prior restraint - government has "heavy burden" to justify such an odious restraint NO: *Injunction based on past conduct or permit scheme?* 1) Injunction based on past conduct regulating TPM of expression •Madsen case - a bunch of abortion protesters at a particular clinic; judge had tried a narrower injunction, but hadn't worked; so trial judge came up with a whole list of things: •Bans loudspeakers, images, created zones around clinic entrance, residences of doctors, etc. 2) Is it a Permit scheme for public forum regulation? •To be a proper permit scheme, must have Narrow objective standards, that are not content-based •Traditional TPM

Walker v. City of Birmingham (1967)

*Facts*: Birmingham was granted an injunction to prevent civil rights protests, who went forward anyway in violation of injunction. HELD: *COLLATERAL BAR RULE* - An injunction must be obeyed, however erroneous the action of the court may be, and the proper venue to challenge the injunction is through the courts. Must follow the law or be held in contempt. *Is this ordinance constitutional?* •It is allowed to have a permitting scheme, but here this one isn't allowed because it allows to much official discretion •Must have narrow, definite objective standards that are neutral, NOT content-based. •Content-neutral justifications are okay - regulation based on number, time of day, etc. •Basically, it must meet the time, place, manner test. •Key here is that they violated the INJUNCTION, not the ordinance. •The ordinance is clearly unconstitutional *Collateral bar rule* - you can't violate an injunction with impunity and then challenge it after the fact in a contempt proceeding. •Can't challenge ordinance after you violate it. •Have to challenge it before you violate it. •Can't use as a defense to contempt the fact that the ordinance was unconstitutional. •[Texas state courts - does not have collateral bar rule with regard to free speech claims ONLY]

City of Renton v. Playtime Theatres, Inc. (1986)

*Facts*: City enacted a zoning ordinance that prohibited adult motion-picture theaters from locating within one thousand feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Constitutional? *HELD*: Yes. The Renton ordinance can properly be considered "content-neutral" because it is not aimed at the content of films shown at "adult motion-picture theaters," but rather is JUSTIFIED by the secondary effects of adult theaters on the surrounding community. Such "secondary effects" include increased crime and traffic in areas relating to the theater's business. Content-based? *Do you need to know what type of movies are playing to know if statute applies?* •So textually, this discriminates. It treats adult films differently. •That is the standard definition of content-based. Classic textual content-based regulation •Rehnquist recognizes this, but says it is *content-neutral anyway since the justifications are content-neutral. These secondary effects are non-communicative impacts that are associated with these businesses*: •Preventing crime, protect retail trade, maintain property values, preserve neighborhood quality, etc. NOT to suppress unpopular views. ACt argued that the "motivating factor" was suppression of immoral views, which is not just secondary effects, this is primary. •Court rejects, looking back to O'Brien, and states that you don't look to the motivations, you look at the expressed justifications •O'Brien: Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive. •In O'Brien, they may have been motivated by stopping anti-war expression, but as long as the expressed justifications in the statute are NOT viewpoint based, but conduct based, so it's okay. *Narrow tailoring?* •Cities do NOT have to conduct their own studies before passing ordinances. They may rely on studies conducted in other cities as evidence. •EVEN though they chose a different means than the city that conducted the city (they created a red-light district, whereas Seattle spread them out) *Underinclusive?* •Just because there's only one biz does not mean it is being singled out *Alternative channels?* •Rehnquist - changes test from "ample" to "reasonable" •Only 5% of city allowed, that's reasonable enough •For time, place, and manner, it has to regulate, it CANNOT be a total ban •If you ban completely it's not really a TPM regulation; and thus have to satisfy strict scrutiny.

Madsen v. Women's Health Center, Inc. (1994)

*Facts*: Madsen was part of antiabortion group enjoined by the courts against picketing within a certain distance of the Women's Health Center •After finding that the protesters violated its first injunction, the court issued a new injunction that imposed expanded limitations on protest activities. *TEST*: MIX OF STRICT AND INTERMEDIATE SCRUTINY *whether the provisions of the injunction are no more restrictive than necessary to promote a substantial government interest.* •*Tailoring is strict scrutiny*; more tight fit than TPM: "No more speech than necessary" •*Govt Interest is just significant* - intermediate. Court: we shouldn't apply normal TPM test here. Not rigorous enough. -Concerns that a single judge deciding free speech rights; thus need for greater than intermediate scrutiny. -Somewhere between prior restraint test (super strict scrutiny) and TPM (intermediate) •But since it's based on a specific factual situation as an injunction (compared to a statute), it's easier to meet test than in the abstract in statutes, which are evaluated by all possible situations (such as Coakley, which was more of a prophylactic measure) •Govt interest here: significant - ensuring public safety/order; free flow of traffic; property rights of citizens/business owners; residential privacy; psychological/physical well-being of patients. •ON EXAM, ANALYZE GOVT INTEREST FIRST, THEN GO THROUGH EACH PARTICULAR ASPECT OF INJUNCTION AND WHETHER IT IS NARROWLY TAILORED

McCullen v. Coakley (2014)

*Facts*: McCullen attempted to speak with women one-on-one outside of abortion clinics to present them with alternatives to abortion. -To protect public safety after several hostile confrontations and violence that had occurred outside abortion clinics, MA passed a law making it illegal for anyone to stand within 35 feet of an abortion clinic, with the exception of clinic employees and patients HELD: Not narrowly tailored, so fails TPM test. •In public fora, the government can impose reasonable, content-neutral restrictions on the time, place, or manner of speech. •Even then, such a restriction must be narrowly tailored to serve a legitimate governmental interest. •By this standard, the restriction cannot burden more speech than is necessary to serve the stated interest. •HERE: In this case, the law is overbroad because it is not narrowly tailored to serve a legitimate governmental interest. •Law is content neutral: while the law inevitably will restrict abortion-related speech more than other speech, that is merely an ancillary effect of the law's main purpose, which is to keep the public safe and ensure access to healthcare. •However, even a content-neutral restriction must be narrowly tailored to serve a legitimate governmental interest. •There is no dispute that public safety and access to healthcare are legitimate public interests, but the law is not narrowly tailored to meet those interests. •The law imposes a substantial burden on McCullen, as evidenced by her declining success in convincing women not to have abortions. The burden is more substantial than is necessary to achieve safe sidewalks. •Massachusetts had other, less burdensome options like imposing criminal penalties on people who intimidate, harass, etc. In short, the law burdens more speech than is necessary to achieve the government's legitimate interests.

Central Hudson (1980)

*Facts*: NYC ordered electric utilities to cease all advertising that promoted the use of electricity for conservation purposes during a shortage. Kept in place after shortage ended. •Central Hudson Gas & Electric Corporation opposed the ban on First Amendment grounds. HELD: Though commercial speech receives less protection, it is still protected by 1st Amd. •Govt arg: monopolies don't need to advertise anyway. •Court: the fact that it is a monopoly market is immaterial. Presumably even a monopoly wouldn't waste money on ads if they didn't have an interest in advertising. •Plus, they do have competition from other markets *TEST* 1) must be non-misleading commercial speech related to lawful activity 2) govt must have a substantial interest (form of intermediate scrutiny) 3) that is directly advanced by regulation; and 4) regulation no more extensive than necessary to serve that interest •What were the claimed interests of the govt? •Energy conservation •Fair and efficient rates •Court: yes, these are substantial govt interest *Are these interests directly advanced by the regulation?* •Energy conservation - yes •Fair and efficient rates - NO. Highly tenuous link; highly speculative. Central Hudson wanted to do a sort of "free nights and weekends" deal. But govt is speculating that if they get free/reduced off-hour energy it would increase peak energy. But that doesn't make sense •4th prong: overinclusive; restricts things that don't necessarily waste energy. Even might restrict energy conservation measures.

Clark v. Community for Creative Non-Violence (1984)

*Facts*: Park regulation prohibited camping and sleeping overnight to promote the conservation of park property. Community for Creative Non-Violence got permit to conduct a demonstration in the parks to illustrate the plight of the homeless. •Demonstrators hoped to build symbolic tent cities and sleep in them during the winter nights. Park service preventing them from sleeping overnight. 1st Amd problem? *Holding*: •No. "Reasonable, content-neutral regulations of the time, place, and manner of expressive speech or conduct do not violate the First Amendment as long as they are narrowly-tailored to further a substantial government interest, and as long as the regulation leaves open ample alternative avenues of expression.* •The regulation of sleeping applies to all sleeping regardless of its message or purpose. •Additionally, alternative avenues exist for them to share this viewpoint. •Finally, the government's regulation of sleeping is narrowly related to its substantial interest in conserving and maintaining the condition of its national parks, as sleeping and camping can degrade the condition of parks. •Although the regulation might be underinclusive as it permits other activities, such as pretending to sleep, that could have the same detrimental impact as actual sleeping, courts should not substitute their judgment for the National Park Service in deciding how to conserve park property.

Perry Education Assn. (1983)

*Facts*: Perry Education Assn. was elected as the exclusive teacher union and was the only union with access to teacher mailboxes Competitor union sued, arguing policy violated the First and Fourteenth Amendments. *Rule of Law*: Unlike public forums and limited public forums that require strict scrutiny, government regulations on non-public forums must only be reasonable and not viewpoint discriminatory. •The school mail facilities are non-public forums. The internal mail system is not held open to the general public, and the school district has no constitutional obligation to let any organization use the school mailboxes. RHODES: •Court focuses just on the individual means of communication, not just where it was located. •So not looking at the whole school, looking at the mailboxes. •EX: last Rhodes' exam, group was allowed to be in park, but just not one aspect. Not a traditional public forum necessarily; need to look at the specific aspect, not the whole park. Park is a traditional public forum, but the one aspect may not be. *FORUM ANALYSIS* •Are teacher mailboxes are *traditional public forum?* •No longstanding tradition to use teacher's mailbox as public forum. Not like a street that's always been open. *Designated public forum?* •Some groups can use: PTA, Boy Scouts, etc. can use. •Common denominator: relate to children's interests •However, the teacher's union isn't targeted to student concerns, but teacher employment. •Limited public forum, even if exists, only relates to student interests, NOT teacher unions. Outside the group that limited public forum was created for •Union argues "we used to have access to it" - so we were within that limited public forum •Court: rejects. The status of the organization changed. Previously, they represented teachers, but now they don't as a result of the union vote. Thus, a non-public forum *Non-public forum test*: does it discriminate based on viewpoint? •No, treats differently based on status. •Apply "reasonableness" test - reasonable in light of forum's purposes. TPM factors (but much less demanding) •reasonable interest in preventing union rivalry. •Also, there are ample alternative avenues to communicate their message

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)

*Facts*: VA statute prohibited the advertisement of prescription drug prices. Consumer group brings suit: Want consumers to be able to know what pharmacists are selling what products for what prices *HELD: Economic motive behind speech does not take it out of 1st amendment protection* •Society has the interest in knowing prices; plus since we have a free market economy - for market to work, you need to know prices. What was the interest in the state in prohibiting this? •Thought that advertising would lower quality; lead to race to the bottom among pharmacists. Undercutting professional pharmacists (which is exactly what happened).

Hazelwood School District v. Kuhlmeier (1988)

*Facts*: Principal ordered two articles on the topics of teen pregnancy and divorce removed from school paper. *Issue*: Whether a deletion from a school newspaper that is reasonably related to legitimate pedagogical concerns violates the First Amendment. •Tinker standard does NOT apply. •Tinker has to do with private student expression; here the school is facilitating expression through the student newspaper, which is part of the school curriculum. *TEST: if speech is part of school curriculum or can be attributed to the school (a school-controlled medium of expression), the school can place greater restrictions on speech* -Reasonably related to legitimate pedagogical concerns. •School CAN be viewpoint discriminatory. •Court: newspaper was NOT a limited public forum. Not indiscriminate use of forum; the school maintained control. •Even if you open it up for some expression, that doesn't mean you have created a forum. •Here, there's so many restrictions (meeting class standards, getting school approval), this is not a public forum. •School is acting as editor/publisher. HOLDING: educators could restrict speech sponsored by the school or that could be fairly characterized as part of the school curriculum when such restrictions were reasonably related to legitimate pedagogical concerns.

Krishna Consciousness, Inc. v. Lee (1992)

*Facts*: Public Airport regulations forbid solicitation of money within the terminals. International Society for Krishna Consciousness, Inc. (ISKC) is a religious group whose members solicit funds in public places to support their movement; files suit. HELD: An airport terminal is a nonpublic forum, and thus any regulations of speech within terminals are only evaluated for their reasonableness and viewpoint discrimination. It is well established that solicitation is a form of protected speech under the First Amendment. •However, it is also well established that the government does not have to permit all forms of speech on its property. •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. •The terminals are properly characterized as nonpublic forums based on definitions from recent prior decisions. They have never been traditionally held out for use by the public for expressive purposes. •the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity. •Additionally, airport owners and operators have not intentionally opened airports to such activity. Rather, they have frequently litigated the issue due to their opposition to this activity. •The argument that this type of expressive activity has been permitted at other transportation terminals such as rail and bus stations is insufficient to justify extending protection for these activities to airport terminals. •Few airports have expanded their purposes beyond the provision of efficient air travel. •Thus, airports cannot be categorized as public forums, and any regulations of speech in airports *must only pass a viewpoint neutral/reasonableness standard*. •Solicitation activities disrupt business. Passengers wishing to avoid solicitors must alter their paths, thus disrupting the flow of traffic. RHODES FORUM ANALYSIS: •Is this a *traditional public forum?* •Majority: NO •Test: not traditionally expressive purpose •Kennedy dissent - ridiculous to freeze forums in the past •Principal purpose is not expressive •Kennedy - ridiculous; principal purpose of streets is travel, not expression. Same with sidewalks and parks *Designated public forum?* •Requires that it be intentionally opened up, which is clearly not the case Thus, this is a *Non-public forum* TEST: viewpoint neutral and reasonable. •Solicitation bar - It's reasonable not to want to have people solicit due to concerns of fraud, delays •Distribution of literature - this is OK under the 1st amendment. •O'Conner - not reasonable to ban literature in terminals that are effectively shopping malls. Not in the way as much. Could still apply TPM factors and pass.

Shuttlesworth v. City of Birmingham (1981)

*Facts*: Shuttlesworth applied for a parade permit in the city of Birmingham. Ordinance conferred great discretion upon a city commission to approve or deny parade permit applications. •In spite of the commission's refusal to grant a permit, Shuttlesworth joined 51 other African-Americans in a march along the streets of Birmingham. After four blocks, the marchers were stopped and arrested. HELD: A law that makes it illegal to assemble on public property without governmental approval is unconstitutional unless the law sets forth clear and impartial standards governing approval. *notice this is an administrative injunction, NOT judicial like Walker* •The city ordinance at issue authorized a city commission to approve or deny a permit based upon its exclusive assessment of the impact of a proposed parade upon "public welfare, peace, safety, health, decency, good order, morals or convenience." •*any permit requirements limiting the exercise of First Amendment speech that are not premised upon narrow, objective, and definite approval standards is unconstitutional* •To condition the exercise of free speech on the unconstrained discretion of a singular authority amounts to unconstitutional censorship.

Walker v. Sons of Confederate Veterans (2015)

*Facts*: The TexDMV permitted nonprofit organizations to design their own specialty license plates, but denied design with Confederate flag. *ISSUE*: is a license plate a limited public forum, or some other type of public forum? *Apply test: whether property is a forum or medium of govt expression:* •1) History •Long history of plates representing state govt •2) Attribution •This is probably the furthest extent of govt speech. •If this was a different message, would Thomas have joined the liberal wing? •Difficult - because a lot of people see the license plate as the driver's message, not the state's message. •3) Control - TX state govt creates, approves •Historically, state license plates have conveyed messages from the state in addition to the state name and plate number. •As a result of this and a state's name being prominently shown on its plates, the public closely associates a state's license plate with that state's government. •Further, a state's license plates are required by, produced by, and issued by that state. •Finally, as evidenced by this case in particular, states retain approval authority for any speech appearing on their license plates. •In sum, the designs approved on Texas's specialty license plates constitute government speech. •As a result, the Sons cannot challenge the DMV's denial based on the First Amendment. The Sons' design would constitute government speech if it were approved for a Texas license plate. The Sons cannot compel the government to put the Sons' design on its license plates. •Sons' private First Amendment rights are not implicated by the DMV's denial. Therefore, the denial did not violate the First Amendment.

Reed v. Town of Gilbert (2015)

*Facts*: Town passed an ordinance that created different categories of signs with different restrictions. •Reed (local pastor) posted temporary signs around the town to direct parishioners to the services. The town cited Reed because the signs violated the sign ordinance. *Issue*: Is a restriction on speech that is content-based on its face subject to strict scrutiny regardless of the government's benign motive or justification? Yes. A restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the government's benign motive or justification (aside: seems to rule out secondary effects doctrine) Content-based? •Yes. You have to look at the text of the sign to know how the sign is treated. •You have to know the content to know how to apply the statute Govt arg: •Not worried about the content, worried about clutter, litter, etc. (secondary effects argument) •Court: you skipped a step. You are talking justifications, but first you must make sure that the statute is not textually discriminating based on content. •Content-based restrictions on speech are presumptively unconstitutional. •The ordinance is content-based on its face because the level of the regulation a sign receives is entirely dependent on the message the sign contains. •The ordinance is thus subject to strict scrutiny regardless of any benign motive or justification on the part of the town. •The town stated that the interests furthered by the ordinance were aesthetic appeal and traffic management. •Assuming that these are compelling governmental interests, the ordinance is not narrowly tailored to serving those interests. •The town does not provide any evidence that temporary directional signs are less aesthetically appealing or more dangerous for traffic than political or ideological signs. •And yet, the ordinance imposes more-restrictive regulations on temporary directional signs. The ordinance is not narrowly tailored to serve the town's interests in aesthetic appeal and traffic safety. •KAGAN'S Concurrence: this is inconsistent with secondary effects cases. •This creates a problem. Intermediate scrutiny is fine here. It is okay to look at underlying purposes. •This is not trying to stamp out speech based on censorship of viewpoints, just trying to treat different categories differently regarding how long they can be up, etc. *Thus, we see that the secondary effects doctrine is not being applied outside the context of sexually-oriented basis.*

Tinker v. Des Moines ISD (1969)

*Facts*: school children protested the Vietnam War by wearing black armbands and were suspended •Students have 1st Amd rights, but do NOT have the right to express themselves in school unconditionally •*TEST: materially and substantially interferes with appropriate discipline in the school; or invades the rights of others is NOT protected*. Here, there was not substantial interference or invasion of others' rights. •Just like at work people have the right to engage in private conversations; students in school have the right to private expression in halls, in lunchroom, etc. •Another thing that made the school authorities suspect: the prohibition was targeted SOLELY at protesting Vietnam; Nazi iron cross was allowed, other political symbols. Singling out one topic for suppression is inappropriate. •Black dissent: children should be seen and not heard. Students don't have speech rights in school.

Schenck v. United States (1919)

*Issue* - Whether the Espionage Act prohibiting certain forms of otherwise protected speech (protesting WWI) during wartime violates the First Amendment. •No. *clear and present danger test* [NO LONGER USED] •Congress has the right to prevent substantive evils. Schenck's speech intending to incite draftees to obstruct the draft can be seen as representing a clear and present danger because the nation is at war. •Congress has significant power under the Constitution to raise and maintain military forces, and thus the prevention of a military draft is a substantive evil that Congress has a right to prevent. •Schenk's conviction under the EA does not violate his First Amendment rights.

Pleasant Grove City, Utah v. Summum (2009)

*Issue*: Is the placement of a permanent monument in a public park a form of government speech and therefore not subject to scrutiny under the Free Speech Clause of the First Amendment? *Holding*: Yes. 1st Amd restricts government regulation of private speech. It does not, however, regulate government speech. •Generally, permanent monuments displayed on public property represent government speech. •Public parks are frequently identified in the public mind with the government unit that owns the land. •Here, the City reviewed, considered, and then gave final approval when presented with other permanent monuments from private donors to display in the park. Court: public forum analysis is not appropriate for monuments because the are permanent in nature, unlike speeches, marches, etc. •Important limitation on public forum analysis: if making the determination that this is a public forum results in the forum being closed, then it's likely not a public forum. •If it would become so inundated that it couldn't function (EX: so many monuments park can't function) •Gotta look at the specific type of communication that's attempted to determine if it's a public forum for that particular type of expression. GOVT SPEECH ANALYSIS: •Issue is whether property is a forum or medium of govt expression: •1) History - traditional means the govt has used? •Yes, long history of govt putting up monuments •2) Attribution - is the message attributable to the govt? Is it a govt message? •Yes, the monuments represent govt speech •3) Control - does the govt tightly control? Then the govt does NOT have to allow contrary viewpoints, it can use to deliver a govt message. •City has maintained control over monument selection

New York v. Ferber, (1982)

*Issue*: Whether a law banning distributing material that promotes sexual performances by children under the age of sixteen violates the First Amendment. YES. A state may prohibit the exhibition, sale, or distribution of child pornography even if that material does not meet the articulated test for obscenity. Court: The main state interest is preventing harm to children •The distribution harms children each time it's viewed; distribution feeds market of illegality. Need to shut down the distribution to prevent harm to child •For the very rare valid depiction of child sexual conduct can be decided on case by case basis (medical journal, etc.)

City of Erie v. Pap's A.M. (2000)

*Issue*: Whether an ordinance that bans nude dancing violates the First and Fourteenth Amendments. *Rule of Law: A government ordinance prohibiting public nudity is permissible under the First Amendment if it is content-neutral and targeted towards combating negative secondary effects associated with adult establishments.* Justification - rise is all-nude adult businesses, and concerned with secondary effects. •Can nudity sometimes be speech? •Yes. It can be expressive speech in protests, etc. •Was the nudity here speech? --Barely. A performance to convey an erotic message. The court recognizes this is "at the outer ambit" of protection. But it is still an aspect of expressive conduct. •Barnes - can argue a long historical tradition of this type of expression - strip teases. It is expressive conduct. •Is this regulation general at conduct? •Yes, targeted at public nudity. (Sometimes expressive conduct, if you are protesting, etc.) *Since it is a regulation of conduct that incidentally might impact expression, apply O'Brien test.* •NOTICE that since it is a total ban, it *CANNOT be a TPM situation*, since it would always fail the "ample alternative communicative channels" prong. *So, use O'Brien test to make a ban.* •1) Govt constitutional power? •Yes, govt can prohibit nudity within police powers •2) Substantial govt interest: preventing the harmful secondary effects associated with nude dancing •3) Are these interests unrelated to suppressing expression •Yes. Not targeting nude dancing, targeting secondary effects •4) incidental restriction no greater than essential? •De minimis restriction, because there's not much difference between pasties and total nudity.

Miller v. California, (1973)

*Issue:* Does a mass mailing depicting sexual acts constitute obscenity unprotected by the First Amendment? •Yes. States have a legitimate interest in prohibiting the distribution of obscene materials. TEST: •(1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest (shameful or morbid interest in nudity, sex, or excretion) •(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and -depictions of sexual acts or lewd exhibitions of the genitals constituted "plain examples" of patently offensive material. •(3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (national standard)

Rust v. Sullivan (1991)

*Sullivan gets abortion with RUSTy tools* FACTS: Govt providing funds to doctors to do Title X family planning. But if doctors took funding, they were barred from discussing abortion Court: this is okay. Government Speech. *Isn't this viewpoint discriminatory?* •Yes, but the govt CAN engage in viewpoint discrimination because the govt can do that when it's choosing what activities to fund. •EX: govt can fund center for democracy; doesn't have to fund center for communism. •Doctors: problem here is this is an unconstitutional condition: giving us money, but creating constitutional problem by conditioning use of funds on restricting doctor's ability to give medical advice regarding abortion. •Court: you can set up an affiliate organization that can discuss abortion. Planned Parenthood, for example, can take Title X for everything except abortion, then direct people to building next door that discusses abortion that doesn't receive govt funds. •What if the govt said that recipient can't create affiliate that discusses abortion? •Yes, problem, since it would place a condition on recipient instead of the program. •Recipient must retain freedom to create affiliate organization that isn't restricted because *you CANNOT condition RECIPIENT only condition use of the funds*. The government may "make a value judgment favoring childbirth over abortion, and may implement that judgment by the allocation of public funds." *Impermissible condition? NO* •"unconstitutional conditions" cases involve situations in which the government has placed a condition on the recipient of a subsidy, rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. •The condition that federal funds can only be used to further the purposes of the Title X grant program does not violate Rust's constitutional rights.

Legal Services Corp. v. Velazquez (2001)

*Velazquez is poor and needs a lawyer that isn't govt speech* FACTS: Congress enacted LSC that provided free attorneys to the poor in noncriminal proceedings. Under the law, lawyers CANNOT argue there's something wrong with welfare laws/for a change in the law. Limits attorneys, since they are supposed to freely represent and bring all claims. UNCONSTITUTIONAL. Not really govt speech. - The Court reasoned that the *program was designed to facilitate private speech rather than provide a government message*, as the financed attorneys were the government's opponents in litigation. - This government-imposed limitation on its opponents, the majority believed, distorted the functioning of the judicial process, necessitating the withdrawal of attorneys whenever a question of the statute's validity arose. Court: this is NOT a classic govt speech situation. While the govt is providing funds, the attorneys are not delivering a govt message, but the client's message, often AGAINST the govt. •To find otherwise would mean the attorney would have to withdraw. The poor would have to find a new attorney, which they typically can't do. •This is different from Rust. •Kennedy is concerned with •1) distorting a normal means of communication. Attorneys should be free to argue what they want •2) this isn't a govt message; govt is providing funds to challenge govt welfare practices. •Scalia dissent: govt is just funding. If attorney can't challenge, in no worse position than if no attorney provided at all. •This is just a failure to fund; govt can fund some issues and not others. •If govt is providing funds, govt can control what the speaker does with those funds.

COMMERCIAL SPEECH definition

*advertising and soliciting for profit or a business purpose* •Not just exchanging money for speech; advertising or trying to solicit people into transactions •When Rhodes sells a copy of his book, he gets some money. That doesn't make the book's contents commercial speech, even when you buy it from him. •However, the advertisements to try to get people to buy the book ARE commercial speech •The key is: are you basing the regulation on the content of what is sold, or regulating how the sale takes place? •If you're regulating how the sale takes place that's okay. •EX: college can restrict selling stuff in the square; BUT can't use regulations to restrict the content of what is sold.

Symbolic Speech/Expressive Conduct

*an intent to convey a message that would likely be understood by those viewing the message.* the government typically has greater leeway to regulate expressive conduct than it does to regulate the written or spoken word, *as long as the conduct is not prohibited because of its expressive elements* Apply O'Brien test.

DENNIS TEST:

1) indoctrination for future violent action 2) group of sufficient size and cohesiveness (big enough to cause harm), and 3) group is oriented toward action to justify a reasonable conclusion that the action will occur at some point in the future •Plus Intent Then there is enough to justify govt action

For the right of free expression to have the breathing space necessary to adequately advance its purposes, the Supreme Court has created a number of procedural protections to supplement the substantive standards discussed in prior lessons. Name 4 of these.

1) issue of whether particular speech falls within the First Amendment is question of law rather than of fact, allowing for de novo review by the courts. Also protects from juries that are likely to hold for speech they like; against speech they don't. 2) vagueness 3) overbreadth and 4) the bar against prior restraints.

Ohralik v. Ohio State Bar, (1978)

An attorney's direct solicitation of prospective clients violates the rules of professional responsibility. UNLESS will represent for free on non-profit motive.

Incitement of Illegal Activity (test)

Brandenburg TEST: IIL 1) INTENT - directed to inciting or producing 2) IMMINENT lawless action (soon? - the point of this element is that there wasn't time for rational reflection.) 3) LIKELY to produce such action (likely) "break down this mofo Brandenburg gate!"

Commercial Speech Test

Central Hudson Test: 1) must be non-misleading commercial speech related to lawful activity 2) govt must have a substantial interest (form of intermediate scrutiny) 3) that is directly advanced by regulation; and 4) regulation no more extensive than necessary to serve that interest Court has explained that the 4th step does NOT require LRM alternative. The fit between the ends and means does not have to be perfect, but reasonable. Thus, this is a form of intermediate scrutiny.

fighting words

Chaplinsky - "words that by their very utterance inflict injury or tend to incite an immediate breach of the peace." Usually a face to face insult More conduct than speech Chaplinsky is a f-in fascist bitch!

Thomas v. Chicago Park District, (2002)

Court has upheld permitting schemes as long as the administrative official has appropriate standards to guide his or her actions and the decision to grant or deny the permit is not based on the content of the message. •Permitting schemes serve several governmental interests-ensuring public safety, coordinating multiple uses of limited space, and protecting government property. •As long as the regulations are tailored to serve these interests, they will be considered content neutral and upheld when there is not overly broad discretion granted to the administrator. Here, upheld Chicago Park District ordinance that required a permit in order to engage in any event involving more than 50 people when the permit had to be granted or denied within 28 days and the permit could only be denied for 13 specified reasons, such as misrepresentations in the application or past unpaid damages -covered not just expressive activities, but also large picnics or sporting activities

Abrams v. United States, (1919)

Ds convicted of conspiring to violate the Espionage Act thru leaflets denouncing the United States' decision to send troops to Russia as part of World War I. Majority upheld conviction, but Holmes dissented. •Schenck was about the intent to interfere with the war effort. This is about a concern for a future interference in Russian Revolution. *The reason Holmes's dissent is important is his support for free speech as important for the "marketplace of ideas."* •This is only 6 months after Schenck; lots of speculation about the change. Some think that Holmes was disturbed by the attacks on his friends for expressing support for free speech. *This dissent becomes the basis for most of our free speech law.*

Matal v. Tam, (2017)

FACTS: Asian rock group "The Slants" denied trademark because federal trademark law prohibits registering disparaging trademarks contemptuous to a substantial composite of an identifiable group. HELD: The Supreme Court, while dividing on aspects of the appropriate analysis, all agreed the government's refusal to register disparaging trademarks violated the First Amendment. •The Court also unanimously held that registering the trademarks did *NOT constitute government speech*: •If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents. . . . •The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, an examiner may not reject a mark based on the viewpoint that it appears to express. •Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. . . . In light of all this, it is far-fetched to suggest that the content of a registered mark is government speech. •The Court then turned to an examination of its cases, noting that the government relied predominantly on Walker and its three factors distilled from Summum. But the Court concluded that trademarks shared none of the necessary characteristics, as trademarks "have not traditionally been used to convey a Government message," the viewpoint expressed outside the challenged disparagement provision "has not played a role" in registration, and the public does not "associate[] the contents of trademarks with the Federal Government."

Cantwell v. Connecticut (1940)

Facts: Cantwell (D) is a Jehovah's Witness. Played record on the street that attacked organized religion, and pedestrians were highly offended and wanted to attack. Cantwell was charged with inciting a breach of the peace. CONTENT BASED? •Reaction based on what he said (not that he was loud/obnoxious, etc). So, it is content-based. Generally allowed to express yourself, unless you engage in obnoxious, annoying, threatening behavior. •Here, there was no profanity, no obscenity, no threats, etc. •He presented objectionable speech; when they objected he left. •Since this is the 1940s, they are still using the "clear and present danger" test. But here, there's no clear and present danger created.

Broadrick v. Oklahoma (1973)

FACTS: Challenging two regulations that prohibited civil service state employees from engaging in certain campaigning activities for political parties as vague and overbroad. HELD: Not vague or overbroad. *Why is this not vague?* •Statute is pretty clear as to what is restricted. •Regarding the specific activities they were charged with, the statute was clear. •Even if the outer boundaries of the statute is imprecise, it is not here. They were asking coworkers to give money for reelection for their boss. Not vague relating to this activity; clearly barred. *Why is this not overbroad?* •Majority - not enough to be "substantially" overbroad. •While a little overbroad, the statute is a whole will not be invalidated because of it. Especially since the litigants were clearly violating the core of the statute's prohibitions, which are clearly not overbroad. •Also, this is NOTpure speech; it involves conduct as well, which is less protected. •Dissent - some things seem to be too much: wearing buttons •*Brennan's analysis: last paragraph important.* •If a statute is really overbroad, it may chill expression, even for those who are not engaging in protected activities, because it might cause fear/chill the expression of those in areas where the statute is clearly overreaching.

Ashcroft v. Free Speech Coalition (2002)

FACTS: Congress passed law banning virtual child porn or older adults acting as minors engaged in child porn •NOT actual child pornography. Constitutional? HELD: Legislation that proscribes a significant volume of speech that is not obscene under Miller and not child pornography under Ferber is unconstitutional. This is NOT child porn because primary concern in child porn is harm to the actual child, which is the whole basis for bans on child porn. •Thus, virtual child porn does NOT meet the Ferber test. *Can virtual child porn be obscene?* •YES. But must meet Miller test. But "virtual child porn" alone doesn't meet the Miller test. •Must lay out the 3 prongs: 1) patently offensive, 2) appealing to prurient interest, 3) no serious literary/artistic/scientific value.

Garcetti v. Ceballos (2006)

FACTS: Deputy district attorney who became concerned that there was inconsistencies and unethical conduct to get a search warrant; testified for defense that it should be quashed. •Claimed that he suffered job consequences as a result. Wanted to apply Pickering balancing. HELD: Unlike speech by a government employee made as a private citizen, speech, even on matters of public concern, is not protected under the First Amendment if it is made while on the job and as part of his or her duties. •*The controlling factor is that Ceballos made this speech pursuant to his duties as a calendar deputy*. The fact that Ceballos spoke in his official capacity meant that he was not speaking as a private citizen for First Amendment purposes and his speech was, therefore, not insulated from discipline by his supervisors. •It does not matter that Ceballos was speaking on a matter of public concern, as his speech was still made in his official capacity and is, hence, not protected by the First Amendment. •The discipline of Ceballos by his supervisors was constitutionally appropriate, and the decision of the court of appeals is reversed. Court held that this was NOT private speech as a citizen, but speech relating to job. •Thus, the govt can judge in its managerial capacity to determine if he's doing his job correctly; not the judiciary's role to second guess. •Complicating factors: he also gave a speech about problem to bar association. Is that speech as a citizen? •Court - focus on task, not on job description •Not too much guidance from the *Court - inquiry is a practical one, not limited to formal job description but rather depends on task employee is actually expected to perform.* Courts have interpreted differently the scope of job duties that this rule applies to.

City of Los Angeles v. Alameda Books, Inc., (2002)

FACTS: LA prohibited the establishment of more than one adult entertainment business in the same building, which applied to prevent a jointly owned adult bookstore and adult arcade (which allows small groups of patrons to view films depicting specified sexual activities) from operating in a single building. several members of the Court who had previously joined opinions decided under the secondary effects doctrine expressed concern about describing such ordinances as "content neutral." •Justice O'Connor, writing for the Alameda plurality, determined that intermediate scrutiny should be applied because the code regulation was content neutral as it was justified by the increased crime rate associated with a concentration of adult businesses. Although Justice Kennedy concurred that intermediate scrutiny should be applied, he did so on the basis that zoning regulations should be another exception to the general rule of strict scrutiny for content-based regulations, similar to the exception for commercial speech. •He continued that it was merely a "fiction" to treat such a zoning regulation regulating certain types of expressive activities as content neutral. •Part I of Justice Souter's dissent, which was joined by Justices Stevens and Ginsburg, likewise contended that the employment of the "content-neutral" moniker was inappropriate, and that such ordinances should be evaluated under a unique *"content-correlated"* analysis that would ensure that the regulation was not based on disapproval of the message conveyed by requiring empirical support for the effects being regulated.

Pickering Case

FACTS: Pickering was a school teacher; he was concerned that a school bond proposal was wasting money, wrote a letter to the editor against the bond proposal. Proposal still passed, but Pickering was fired, and he brought suit. •SCt: Here, Pickering was speaking out just like citizens do all the time with respect to an interest of both his and the community that he had specific knowledge of. *Pickering balancing test*: balance state interest in providing efficient governmental services versus individual and public interests in the speech at issue •Here, there was very little problem created by what Pickering had done. He wasn't a top administrator, where his action might have been contrary to an administrative decision that had been made. Just a teacher. His views didn't impact his ability to do his job. •On the other hand, his interest in providing his views was very high. Every citizen can do that. And the community had an interest in hearing from him, since he had more knowledge than most had of education system

Cohen v. California, (1971)

Facts: Cohen convicted after wearing a jacket bearing the words "Fck the Draft" to protest Vietnam War. Arrested for breach of the peace. •Not obscenity, because he's not using "fck" to refer to sex. •Fighting words? - no, not directed at any specific person •*Case stands for the proposition that you can't criminalize a word, just because of the word itself.* •The viewers of Cohen's jacket had the option of very easily looking away and guarding themselves from the offensiveness of his message. •There is no compelling reason for California to criminalize this particular word as opposed to any other potentially offensive words.

Dennis v. United States (1951)

FACTS: Prosecuting communist party leaders (some of which were known to be soviet spies by US intelligence) *Plurality:* clear and present danger test, modified. •Take out the imminence, likelihood. •Add the "risk formula" approach of Learned Hand: "the gravity of the evil, discounted by its improbability justifies the invasion of speech. •Under this test, they can be prosecuted. *Jackson* •Clear and present danger test isn't appropriate here. •In the WWI cases, they were handing out pamphlets, trying to change minds. Out in the marketplace of ideas. •Here, they are *doing this all in secret that at the right time can spring a trap.* •The clear and present danger test, makes sense with the rabble rouser in the street handing out fliers. •But when we're talking about secret subversive action to gather a crowd to engage in violence to overthrow the govt, the courts are not in a good position to make a judgment. *Frankfurter* •Just relied on reasonableness test Dissent--Black & Douglas: communists are not strong enough in US to pose real threat *Later cases reinterpreted Dennis; 3 part test for what Dennis meant.* •1) indoctrination for future violent action •2) group of sufficient size and cohesiveness (big enough to cause harm), and •3) group is oriented toward action to justify a reasonable conclusion that the action will occur at some point in the future •Plus Intent Then there is enough to justify govt action

Coates v. Cincinnati (1971)

FACTS: Statute prohibited 3 or more persons assembling on a sidewalk, and being "annoying" *Vagueness* - when a person of common intelligence has to guess. -What does "annoying" mean? Not a good standard. •Statutes must specify more specific behavior, like "blocking sidewalks" •Fair notice concern; but also selective enforcement - police might only arrest those they disagree with *Overbreadth* - a lot of protected forms of expression might be annoying to others HELD: Conduct that may be annoying to one person may not be annoying to others. In that regard, the Cincinnati ordinance fails to define any cognizable standard of conduct by which to define a violation. •The language of the ordinance leaves the person of ordinary intelligence having to guess at its meaning. [VAGUENESS] •Although the ordinance falls within the gambit of the city's broad constitutional police power, the city must regulate the particular activities within the scope of its authority by the implementation of reasonably specific ordinances. •It may not prohibit any and all conduct falling within the scope of its authority by way of ambiguous standards that may lead to enforcement only when a police officer finds particular conduct annoying. •In addition, the ordinance impermissibly infringes upon the constitutional right to free assembly. [OVERBREADTH] •The First and Fourteenth Amendments prohibit conditioning the right to assemble on the simple fact that it may annoy some people. Such a rule would invite discriminatory enforcement against any group the majority found discomforting.

Morse v. Frederick, 553 U.S. 393 (2007)

FACTS: Students had been released to watch a runner carrying the Winter Olympic torch through Juneau, Alaska. *Frederick wants Morse "Bong Hits 4 Jesus."* HELD: school officials could have reasonably interpreted the banner as promoting illegal drug use, and that school officials "may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." •While cautioning that public schools cannot censure student speech merely due to its offensiveness, the Court concluded that the First Amendment did not require schools to tolerate any student expression encouraging illegal drug use. •the Court upheld student discipline for speech viewed as promoting drug use during a school-sponsored event.

Bethel School District v. Fraser (1986)

FACTS: case involved an explicit sexual metaphor in a nominating speech. HELD: school can punish vulgar speech at a school assembly or in the classroom. •While there was no disruption to satisfy the Tinker rule, the Court nonetheless held that school officials were justified in sanctioning sexually explicit student speech made during a school event. •The Court explained: "A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students." Id. at 685.

Rumsfeld v. Forum for Academic and Institutional Rights, Inc., (2006)

FACTS: law schools refuse military recruiters to protest Don't Ask Don't Tell. Court: expressive conduct must be "inherently expressive"-that the conduct alone would make it apparent to a reasonable observer that a message was being conveyed without the assistance of speech explaining the conduct. •The Court held that the refusal of some law schools to allow military recruiters on campus was *not* inherently expressive as the reasonable observer would have no way of knowing whether the law school interview rooms were full, whether the military preferred to interview somewhere else, or whether the law schools disapproved of the military.

Barr v. American Association of Political Consultants, (2020).

FACTS: •The federal Telephone Consumer Protection Act of 1991 (TCPA) bars almost all automated calls (robocalls) to cell phones. Congress in 2015 creating an exception to this prohibition, allowing robocalls to be made to cell phones to collect a debt owed to or guaranteed by the U.S. government. •Groups of political consultants then filed suit, arguing that the 2015 government debt-collection exception to the robocall ban favored certain speech based on content and therefore violated the First Amendment. HELD: •The Supreme Court splintered hopelessly on the appropriate rationale and holding. -A plurality opinion authored by Justice Kavanaugh, joined by Chief Justice Roberts, Justice Alito, and partially by Justice Thomas, followed the Reed majority's analysis and held that, *because the amended restriction facially drew a distinction predicated on the message of the robocall, it was based on content and subject to strict scrutiny*. •As the plurality explained, A robocall that says, "Please pay your government debt" is legal. A robocall that says, "Please donate to our political campaign" is illegal. -That is about as content based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech. •The government conceded that it could not satisfy strict scrutiny, but urged that the appropriate remedy was to invalidate and sever the government-debt exception from the 2015 amendment rather than to invalidate the entire TCPA. •Justice Kavanaugh, here just with Chief Justice Roberts and Justice Alito, agreed, *holding the 2015 exception for government debt unenforceable (which, as a practical matter, reinstated the original ban on all robocalls to cell phones)*. Justice Gorsuch concurred in the need for strict scrutiny, but employed a different rationale. He noted that the government's claimed justification for TCPA's robocall restriction was consumer privacy. •But the exception for government debt, in his view, "allows a seemingly infinite number of robocalls of the type consumers appear to find most invasive." •He therefore reasoned that the *government did not have a sufficient basis for banning any robocalls*: "[I]f the government thinks consumer privacy interests are insufficient to overcome its interest in collecting debts, it's hard to see how the government might invoke consumer privacy interests to justify banning private political speech." •He then proceeded to dissent, joined here by Justice Thomas, from the Court's pronounced severance remedy, contending that the plaintiffs were entitled to an injunction prohibiting the TCPA from being enforced against them, which would have allowed political robocalls to be made to consumers. •*Justice Breyer, joined by Justices Ginsburg and Kagan, disagreed that the debt-collection exception violated the First Amendment*. He objected that the plurality's approach - as well as the analysis in Reed - improperly "reflexively applie[d] strict scrutiny to all content-based speech distinctions" in a manner "divorced from First Amendment values" of "'bringing about . . . political and social chang[e].'" He viewed the regulation as a mere commercial regulation of debt collection, subject to a form of intermediate scrutiny, which he believed was satisfied. But, because a majority of the Court concluded to the contrary, he concurred with Justice Kavanaugh that the appropriate remedy was severing the debt-collection exception from the remainder of the TCPA. •Justice Sotomayor agreed with Justice Breyer that intermediate scrutiny should be applied, but disagreed that it had been satisfied. She therefore concurred in the judgment, concluding that the debt-collection exception violated the First Amendment and should be severed from the TCPA. •Undoubtedly, the exception for debt-collection speech drew facial distinctions based on content. But the Court could not coalesce around a majority opinion regarding the import of that content distinction. *In sum, Justice Kavanaugh's opinion focused on the facial distinction alone as requiring strict scrutiny review, Justice Gorsuch's opinion employed the textual distinction to implicate a strict scrutiny review that rendered the government's justifications suspect, and Justice Breyer's opinion urged that such textual distinctions did not always mandate strict scrutiny. Who has the better of the argument?*

indecency

FCC v. Pacifica, (George Carlin monologue). F the CC! I want my Carlin! In the context of radio broadcast, govt regulation of indecent material is more warranted for two reasons: -1) radio listeners might be unwillingly confronted with indecent material without prior warning. People frequently scan the radio dial happening upon stations without easy means to know what lies where. -2) the medium is "uniquely accessible to children" and the govt may properly shield children from indecency. US v. Playboy - indecent material is subject to strict scrutiny.

Central Hudson test of commercial speech:

FORM OF INTERMEDIATE SCRUTINY *1) must be non-misleading commercial speech related to lawful activity* •If it's misleading, it's fraud and unprotected •If it's related to illegal activity, it's unprotected *2) govt must have a substantial interest* (form of intermediate scrutiny) *3) that is directly advanced by regulation*; and *4) regulation no more extensive than necessary to serve that interest* •This is the confusing element. •"No more extensive than necessary" •Is this a form of intermediate tailoring, that requires a reasonable fit, or is this more like strict scrutiny that requires it to be least restrictive and a perfect fit, or is it somewhere in between that requires consideration of alternatives (strong fit, but not a perfect fit). •We can see the Court struggling with this. They have been inconsistent. -Some justices, such as Thomas want to treat this like strict scrutiny, others are unclear.

Feiner v. New York, (1951)

Facts: Feiner giving an inflammatory speech in favor of racial equality. Crowd getting pissed at him. Police give warnings, he doesn't stop. Arrested. Free speech violation? *Rule of Law*: When an individual speaks in a way that breaches the peace and attempts to incite a crowd to riot, police officers do not violate the First Amendment by putting a stop to the speech. *Two important concepts from case* •1) speaker cannot incite a riot •2) police have to protect speaker unless they can't. (from dissent) The dissent is persuasive that there's not enough evidence that he incited a riot. •Another questionable aspect: don't want to give a "heckler's veto" - when crowd threatens violence to shut down a speaker. Like Chaplinsky, the law is still good; but the factual application wouldn't happen anymore. More narrow today.

City of Houston v. Hill (1987)

Facts: Hill (defendant) was arrested and charged with violating an ordinance of Houston (plaintiff) that prohibited any conduct that interrupts a police officer in the execution of his duties. *•A lot of areas of expression toward police officers is protected •Unless if you're engaging in fighting words or threats, you have the right to express yourself. •It is within the 1st amendment to challenge police officers* HELD: An ordinance that criminalizes constitutionally protected speech and vests excessive enforcement discretion with law enforcement officers is unconstitutionally overbroad. •Speech does not fall outside constitutional protections simply because it is directed at police officers. •The ability to verbally challenge police action without being subject to arrest is one of the fundamental characteristics of a free state. •The city ordinance, however, is not narrowly tailored to proscribe conduct that tends to provoke physical confrontation (fighting words) •The city ordinance is of the type that tends to be relied upon as grounds for arresting a person in the absence of any other valid basis. •The ordinance criminalizes a broad spectrum of constitutionally protected speech while leaving enforcement decisions entirely to the discretion of police officers. The ordinance is unconstitutionally overbroad.

Connick v. Myers (1983)

Facts: Myers was an assistant DA working for Connick Myers was unhappy that Connick was transferring her so she conducted a survey of her fellow employees' views on the transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. She was fired. HELD: When a public employee speaks about matters that are of purely personal interest and not of public concern, any decision by government officials about personnel actions taken in response to the employee's expression are entitled to great deference by the courts. •If, however, a government official's actions are performed in response to an employee's speech that does involve matters of public concern, a court must balance the employee's interest in speaking against the government's interest in the effective and efficient fulfillment of its responsibilities to the public. *If public concern, apply Pickering balancing* •*Whether an employee's speech involves a matter of public concern depends on the CONTENT, FORM, CONTEXT of a particular statement*, as revealed by the whole record. •Most of Myers's questions did not involve matters of "public concern," but were merely extensions of her disagreement with her personal transfer to another department. •The only question that touched on a matter of public concern was whether assistant district attorneys "ever feel pressured to work in political campaigns on behalf of office supported candidates." •Myers's interest in speaking is outweighed by the government's interest in effectively discharging its duties to the public by maintaining strong working relationships. Connick's decision to terminate Myers based on his judgment that her questionnaire inappropriately interfered with working relationships is entitled to deference by the courts.

44 Liquormart, Inc. v. Rhode Island, (1996)

ISSUE : May the state prohibit all ads of alcohol prices, except on in-store displays, intending to raise alcohol prices by preventing competition and promote state's temperance interest? NO. Bans that target truthful, non-misleading commercial messages rarely protect consumers from such harms. -underlying governmental policy that could be successfully implemented without regulating speech. -the state provided no evidentiary support for this assertion. -there are reasonable alternatives for accomplishing state's stated purpose. -case shows confusion on the Central Hudson elements; particularly the 4th element regarding the tailoring of the regulation. *4) regulation no more extensive than necessary?* Govt's claimed interest: reducing alcohol consumption -Logic/common sense is not sufficient, need evidence, which govt didn't provide.

Johanns v. Livestock Marketing Association, (2005)

ISSUE: Is a promotional campaign for beef products was government speech? YES. the campaign was government speech by reasoning that the Secretary of Agriculture exercised final approval authority over each word in the campaign, members of the Department of Agriculture participated in formulating the promotional proposals, the government established the overall message to be communicated, and the government funded the program through an assessment on cattle sales and importation.

Lane v. Franks (2014)

ISSUE: whether a public employee spoke pursuant to his official job duties in providing truthful, sworn testimony in a criminal proceeding when his job duties did not encompass testifying in court (as might be the case for a police or probation officer), but his testimony did relate to matters he had learned on the job. HELD: lower court "read Garcetti far too broadly" in holding that any speech related to matters learned in the course of public employment removed the speech from protection against employer retaliation. •Instead, the Supreme Court explained: "The critical issue under Garcetti is *whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties*." •Because every individual has an "independent obligation" to tell the truth in a court proceeding, sworn testimony is speech as a citizen rather than speech as an employee, at least if the employee's ordinary job responsibilities do not include testifying in judicial proceedings. •But the Court provided little other guidance, requiring lower courts to continue to fend for themselves in ascertaining the scope of official-duty speech.

Brown v. Entertainment Merchants Association (2011)

Issue - Must a state law that seeks to prohibit the sale of violent video games to minors be narrowly tailored to serve a compelling government interest? YES, this is a content based regulation and thus subject to SS. Video games are speech - just because something's entertainment does mean it's not protected speech. Dangerous to try to distinguish entertainment from protected speech. *Content-based?* •Text: Yes: had to know the content of the video game to know whether the law applied. •Justification: concerned with impact of speech on minors Government: It fits into obscenity exception Court: no, it's not about sex, it's about violence. •Govt: well, then it's about protecting minors from violence •Court: there's no historical tradition of protecting children from violence *Compelling interest: protecting children* •Court: there's no causation evidence that exposure to video games causes aggression in children. Just correlation. *Underinclusive*: there's violence on TV, movies, etc. that children see. Also, kids can get it through adults *Compelling interest*: help parents •There's already a rating system in place. *Overinclusive*: a lot of parents have no problem with their kids playing these game

United States v. Stevens (2010)

Issue: Is a federal law that seeks to ban visual and auditory depictions of animal cruelty permissible under the 1st Amd? Can animal cruelty be an exception to free speech like child porn, obscenity? No. Court rejects govt's proposed cost-benefit balancing test to determine whether depictions of animal cruelty should be added to other categories of restricted speech. Exceptions must be based on historical tradition going back to 1791 that are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Here, the statute is overbroad and reaches too much protected speech. Although the law seeks to ban "crush" videos and other similar content, it also applies to depictions of hunting, an activity enjoyed by a large portion of the country

VA v. Black

Issue: Is a statute unconstitutional if it both bans cross burning done with the intent to intimidate and states that the act of burning a cross is itself prima facie evidence of the intent to intimidate? Because of history, cross burning can be specifically targeted as illegal fighting words (intimidation) under "special virulence" exception of RAV. However, you can't infer intent. Can't be prima facie evidence of intent.

Chaplinsky v. New Hampshire (1942)

Issue: Whether a New Hampshire law prohibiting offensive, derisive, or annoying speech on public streets violates the First Amendment. (Chaplinsky, making speech against other religions, arrested after calling a cop a fascist). *HELD: "Fighting words" that incite others to violence are not protected by the First Amendment.* *fighting words*—those that from the perspective of a reasonable listener, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. This type of speech has very little social value, and thus makes no contribution to the marketplace of ideas protected by the First Amendment. RHODES: Today, this case might have gone the other way. Would look at the context, not just speech content. Not clear here that it will cause a riot. Calling cop names shouldn't cause a fight.•Statute is really broad - offensive language is a crime. WAY too broad. Court did put a limiting construction on it; only applies to "fighting words"

Brandenburg v. Ohio, (1969)

Issue: Whether an Ohio statute that criminalizes syndicalism (applied here to KKK leader) violates the First and Fourteenth Amendments. Yes. 1st Amd free speech does not permit "a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Mere abstract teaching of a need to resort to force or violence is upheld as protected by the First Amendment because this activity is far different from preparing a group for violent action and encouraging it to commit that action. A statute that does not distinguish between the former and latter types of speech violates the First and Fourteenth Amendments because it is over-inclusive.

New York Times Co. v. United States (1971)

Issue: Whether the United States government may prohibit a newspaper's publication of information that would jeopardize national security. •Any system of prior restraints bears a heavy presumption against its constitutional validity. •In the instant case, the government had not met this burden. HELD: The United States government may be constitutionally permitted to enjoin publication material on the grounds that such publication jeopardizes national security, but the burden for justifying such an injunction is extremely high. •Black - never prior restraints •Douglas - never unless at war •Brennan - never except "ships at sea" or "nuclear holocaust" scenario •Stewart/White - agree this is an improper prior restraint, but newspapers are not immune to criminal prosecution •Dissenters - want to defer to the govt and its claims

Jenkins v. Georgia, (1974)

JENKINS CAN WATCH CARNAL KNOWLEDGE IN GEORGIA! *Facts*: Jenkins (defendant) was convicted in Georgia on charges of distributing obscene material as a result of screening the film "Carnal Knowledge." Case illustrates how difficult the standards are. How hard it is to give standards to jury. •This was a mainstream Hollywood film. Jack Nicholson, Art Garfunkel. NOT a porno. •Jury said it was obscene; USSCt - no its not. •The film alludes to sexual activity, but the camera does not focus on the actors' bodies during those scenes. •The film contains some nudity, but nudity alone does not amount to patently offensive sexual conduct. -The film does not meet the legal standards for obscene material and is therefore protected speech under the First Amendment as applied to the states by the Fourteenth Amendment.

Procedural Protections: Overbreadth

Overbreadth - *regulates substantially more protected speech than authorized under substantive standards* •Examine scope of statute (with any limiting construction) and extent protected by First Am. •If most of the statute is unconstitutional, then substantially overbroad and thus unconstitutional. *Unique aspect of overbreadth - exception to the prohibition on 3P standing.* -When a statute is substantially overbroad (mostly regulates protected speech), even someone whose actions is constitutionally restricted, can sue and invalidate the whole statute. •Key things about this is that the overbreadth HAS TO BE SUBSTANTIAL. •If the overbreadth is minor, that's not going to invalidate the statute. Includes any limiting state construction. •(EX: Chaplinsky - lower courts had interpreted to mean only fighting words) •*If a state court has limited the construction of a state statute, that is binding on federal courts because of the Erie doctrine*. •Unclear how much is "substantially" overbroad. Must be at least 50%, but how do you measure?

Paris Adult Theatre I v. Slaton, (1973)

PAD-LOCK THE PAD IN GEORGIA! *Facts*: Paris Adult Theatre I (PAD) owned and operated an adult movie theater in Atlanta, Georgia; showing two obscene films depicting sexual acts and nudity. Convicted under obscenity laws. *Issue*: Whether states may regulate commerce in obscene material and exhibition of that material in places of public accommodation. *HELD:* YES. Established 1st Amendment principle that state governments could prosecute obscenity presentations in public places. Decision recognized "legitimate state interests at stake in stemming the tide of commercialized obscenity..." •Court relied on report that showed relationship between watching porn and crime

Government Speech issue 2: Government Speech or Forum? EX: If the government has allowed a private speaker to put up a display in the foyer of the state capitol, does that mean the government has created a forum for private expression, or can the government claim that the display is the government's speech so that it can discriminate based on the viewpoints expressed?

TEST: HAC! (1) HISTORY - a *history* and tradition exists of government using the medium to transmit messages, (2) ATTRIBUTION - the expression can be *reasonably attributed to the government*, and (3) CONTROL - the government has exercised sufficient *control* over the messages. So although a public park is a traditional public forum, the government can still claim that the placement of permanent monuments in the park is government speech, even if the government accepts monuments from selected private speakers, because of the history of government expression through monuments, the attribution of such monuments to the government, and the control over the expressed messages through the selection process.

Randall v. Sorrell (2006)

Test for limits on campaign *contributions*. *Closely drawn to a sufficiently important interest. Less demanding than strict scrutiny.* Starting with Buckley and continuing through later cases, the Court has consistently held that preventing corruption or its appearance is a sufficiently important govt interest. - The Supreme Court found unconstitutional a Vermont campaign-finance statute limiting both the amounts that candidates for state office could spend on their campaigns and the amounts that individuals, organizations and political parties could contribute - These expenditure limits, the court said, are "inconsistent with the First Amendment" because they were "too restrictive" and "disproportionately severe" to advancing the goals of corruption-free elections Court test: whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless.

REMEMBER! If speech does NOT fall into a category of unprotected/less protected speech, the analysis isn't over.

You still apply strict scrutiny

TPM TEST The government has greater authority to regulate speech based on *non-communicative aspects of the expression* than it does to regulate based on content. •A *content-neutral restriction on the time, place, or manner of expressive activity is constitutional if it is (4)*

[intermediate scrutiny] •1) narrowly tailored to serve a - [AKA can't burden substantially more speech than necessary - this is looser than LRM] •2) substantial government interest that is •3) unrelated to the suppression of expression and •4) leaves open ample alternative channels for communication. •The tests for expressive conduct and time, place, or manner restrictions overlap substantially. But there is a distinction in their scope.

Fraud

intentional deceitful, false, or misleading factual statements designed to effectuate harm after reliance •SCt has never actually defined fraud exception, just mentioned it •EX: perjury, statements to embezzle; any time you're saying something false that's designed to hurt someone else •Court has frequently mentioned that speech integral to criminal conduct is unprotected by the First Amendment. •The rationale is simple enough-criminal activity should not be insulated from prosecution merely because it involves speech to some degree. •But this exception must be appropriately limited to speech that is part and parcel of criminal conduct in order to prevent the government from criminalizing expression that is protected by the First Amendment.

Content neutral =

intermediate scrutiny •It's not distinguishing between types of speech or content, but only *regulating speech because of its non-communicative harms* •EX: nobody wants a sound truck blaring super loud music outside their house at 1am. •EX: robocalls on cellphone.

TPM Tailoring

not as strict as LRM, but can't "burden substantially more speech than necessary" to achieve govt interest satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulations." In Ward v. Rock Against Racism (1989), the Court provided the following explanation in concluding that the mere existence of less intrusive alternatives does not preclude a regulation from being narrowly tailored: •[The narrowly tailored requirement] is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulations." •To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. •Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. •So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. •In McCullen, though, the Court concluded that the Massachusetts Act was not narrowly tailored, as the buffer zone was substantially broader than necessary to achieve the government's interest.

Because of concerns that the threat of enforcement of an overbroad law may chill constitutionally protected speech of individuals who are hesitant to risk prosecution, an overbreadth challenge may be made even by

someone whose conduct is within the constitutionally valid scope of the regulation. •Thus, despite the usual standing requirement that a person engaged in activities subject to constitutionally valid regulation cannot challenge the ordinance on the basis that it might be applied unconstitutionally to others in different situations, a challenger may raise a First Amendment overbreadth claim against a regulation based on its application to others. •If the law is found deficient on overbreadth grounds, it may not be applied to the challenger's conduct either, until and unless a satisfactory limiting construction is placed on the statute.

true threat

speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety *falls under speech integral to criminal conduct, or maybe fighting words* threat does NOT have to be immediate. We're concerned about the fear it causes. Have to have more info. What was her manner when she said it? What was her intent? •No imminence requirement at all. •The important factor is the creation of the fear. The fear itself doesn't to be imminent. •Not clear if has to be an objective or subjective standard. A lot of cases require both. Mens rea required for person making threat, and reasonable objective person would interpret as threat, and subjective fear by target.

Mt. Healthy City School District Board of Education v. Doe, (1977)

the Court articulated a burden- shifting scheme for evaluating whether the employee's termination was a result of protected speech, requiring the employee to first show that his constitutionally protected expression was a substantial or motivating factor in the termination before the burden shifts to the government to show by a preponderance of the evidence that it would have reached the same result even without such expression.

Difference between O'Brien and TPM Tests?

•*O'Brien applies when a statute is directed generally at conduct, but a challenger establishes that the prohibited conduct is sometimes expressive.* •As an illustration, some cities have adopted ordinances prohibiting smoking in any indoor public facility. This is a ban directed at the conduct of smoking. But in some instances it might be claimed that smoking has an expressive element, such as in a theater production like "The Graduate." •A court would then apply the O'Brien test to determine whether the restriction on expressive rights is greater than essential to further a substantial government interest unrelated to the suppression of expression. •*In contrast, the time, place, and manner test applies when a statute is directed at the manner of speech*. •Rather than generally targeting conduct, the government is directly regulating when speech can occur, where it can occur, or how it can occur. •This would allow a city, for example, to preclude downtown marches or parades during rush hour, or to impose decibel limits on outdoor concerts. •This is permissible as long as the regulation is narrowly tailored to serve a substantial government interest and ample alternative communicative channels are provided, assuming the government is not banning speech or regulating it due to its content. •But while conceptually distinct, sometimes both tests are potentially implicated, as seen in the next principal case. BIGGEST DIFFERENCE? The "Ample alternative communicative channels" - since you're targeting expression in TPM, you need to have alternative means to express. Whereas O'Brien is targeting conduct, there's not the same need for alternative channels of communication. •If it's mostly conduct that's sometimes expressive - O'Brien •If it's mostly targeted at expression generally - TPM If there's a gray area, where it's both, use both tests.

PUBLIC EMPLOYEE SPEECH: BASIC FRAMEWORK

•1) Speech as a citizen, not pursuant to official job duties? -Contextual analysis (day-to-day duties most important) v. employer-mandated speech •2) matter of public concern? - CONTENT, FORM, CONTEXT •3) Pickering balancing - balance state interest in providing efficient governmental services versus individual and public interests in the speech at issue 4) Protected speech basis for the adverse employment action - BURDEN SHIFTING FRAMEWORK: Employee must show that speech was the motivating factor in the adverse employment event; then burden shifts to employer to disprove.

Two general types of content-neutral regulations:

•1) symbolic/expressive conduct - regulation is targeting conduct, but only sometimes it is incidentally expressive (O'Brien test) •2) time, place, manner of speech - the "noncommunicative" aspects of speech

SECONDARY EFFECTS DOCTRINE

•Basically another way to establish content neutrality [and thus intermediate scrutiny], but JUST for sex-based businesses. •Remember: text, justification, as-applied can each make a statute content-based/neutral. BUT, under the "secondary effects doctrine," even a law that textually discriminates against sex-based businesses can be content neutral if it is *justified by an interest unrelated to the suppression of expression* •Rhodes thinks that a better approach would have been simply to create a new exception like the obscenity exception.

United States v. O'Brien (1968)

•FACTS: Burned Draft Card on the steps Boston Courthouse in violation of law; crowd starts beating him; FBI arrests him. •If conduct contains both speech and nonspeech elements, an important or substantial governmental interest in regulating the nonspeech element may justify some limitations on constitutionally protected speech elements. •Court sets up purely *intermediate scrutiny O'Brien test for expressive conduct*: •(1) the regulation is within the constitutional power of the government, •(2) the regulation furthers an important or substantial governmental interest; •(3) the governmental interest is unrelated to the suppression of free expression, and •(4) the incidental restriction on expression is no greater than is essential to the furtherance of that interest. •TEST APPLIED •1) First Element: does the govt have the power to regulate the conduct? •Yes, Congress has broad power to conduct a draft, and necessary and proper measures related thereto •2) Does govt have a substantial interest? •Yes, govt interest in protecting certificates to give proof of registration, facilitating communication with draft boards, reminding registrant, etc. •3) Is govt purpose related to suppression of expression? •No. These are all related to orderly registration of draftees •What about the fact that some legislators specifically mentioned stopping expression? •No, the motive of a few legislators does not override the express purpose of Congress. If Congress has neutral language in the statute that's okay. Wrote it neutrally. "True motivations" of Congress is not as important as the stated justifications. •Court of Appeals decided based on true motivations which was pretty clear that Congress was targeting a particular message •SCt: that's not the proper analysis. As long as there is a content neutral justification provided for the statute, that's what's important •4) incidental restriction on expression no greater than necessary •It was narrow. Court perceives no alternate means that would preserve certificates

Texas v. Johnson (1989)

•FACTS: Statute bans burning flag in a way that seriously offends other. *First question: is there expression here?* -an intent to convey a particularized message through the conduct and the likelihood that the message would be understood by people viewing it.? -Court: yes, if Texas is worried that it will cause a fight, there must be an expressive content. There was intent to express, and the people will understand the expressive content. If the conduct is classified as expressive, the court must determine whether the state's regulation is related to the suppression of free expression. If yes, strict scrutiny. If the regulation is not related to expression, the court must apply O'Brien. *O'Brien test (intermediate scrutiny) can only be used when the justifications of the statute are unrelated to expression.* •What are Texas's justifications? •1) Might cause an immediate breach of the peace? •No. there are situations where you can burn flag and it won't be fighting words. •It can be sometimes, if done in a way to breach the peace. But isn't necessarily. •Also, the statute here isn't related to breach of the peace. •Here, there was no fight. •Thus, state's interest in breach of the peace is not implicated •2) preserving the flag as a symbol of national unity •This is related to expression. •Statute distinguishes on how you burn flag. If you do so in a way that causes offense it's barred; but if you follow the code to properly dispose of old flag thru burning, then it's okay. *This is content based. Thus it requires strict scrutiny. Must have a LRM of fulfilling compelling govt interest* Can govt satisfy? •No. Govt cannot ban the expression of an idea just because it finds the idea objectionable. •The whole idea of the flag as a symbol/idea; even the people who hold the flag in contempt have rights.

Forums Essay Example

•The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue. •In public places that have historically been devoted to assembly and public debate, the right of the government to limit expressive activity is greatly limited. •For example, public streets and parks are quintessential public forums where the government may not prohibit all communicative activity. •In these instances, the government may only enforce a content-based exclusion if it shows that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. •Additionally, the state may enforce regulations of time, place, and manner of expression that are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. •Limited public forums consist of public property that the state has opened for use by the public as a place for expressive activity. There are *TWO TYPES* *A) Unlimited designated public forum* - areas in which the govt has intentionally opened up for indiscriminate use of *EVERYONE* *B) Limited designated public forum* - areas in which the govt has intentionally opened up for indiscriminate use of *Certain subjects/groups* •EX: public schools allow people to use rooms, but schools can limit which groups have access to student groups, etc.; but random groups can't use. •Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards that apply in a traditional public forum. •Non-public forums are public property that is not by tradition or designation a forum for public communication. The first question here is whether the restrictions discriminate based on the viewpoint of the speaker. If not, the government may enact reasonable time, place, and manner restrictions on non-public forums. •Thus, the state may reserve the non-public forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's viewpoint.

Criticism of Secondary Effects Doctrine

•Theoretical problem: this would allow the govt to do a lot to stifle speech by just citing other justifications as "secondary effects" Is it a fiction to consider the Renton and City of Erie ordinances as content neutral when they facially apply to specified speech? •The Roberts Court, in its recent decisions, has refused to deem a regulation content neutral when it is textually predicated on the message delivered. (Reed decision) •As a result, if the regulation's application depends on the specific message imparted (that is, an examination of the message is necessary to determine whether the regulation applies), the regulation is content based without the need to consider the regulation's justifications. •But these cases have neither involved regulations of sexually explicit businesses nor disavowed (or even discussed) the secondary effects doctrine. REED rejected using secondary effects doctrine •The Reed majority seemed to be concerned that a facially content-based statute, even when its justifications are unrelated to content, might be used in the future "to suppress disfavored speech." Why isn't this also a concern with respect to ordinances regulating sexually oriented businesses?