Con Law Part 3

Four-part test for public official's defamation claims under New York Times:

(1) The plaintiff must be a public official or running for public office, (2) The plaintiff must prove her case with clear and convincing evidence, (3) The plaintiff must prove falsity of the statement, (4) The plaintiff must prove actual malice.

Defamation and the First Amendment

(1) Under the common law of torts and remedies, reputational injury may be presumed permitting the plaintiff to recover compensation without any proof beyond the defamatory nature of the statement allowing for presumed general damages. Special damages (actual economic losses) may need to be proven depending on whether the defamatory statement is slander or libel. (2) Free political speech is highly valued in a democratic society and is a major justification for free speech fundamental rights. Thus, the remedy of presumed damages for defamation creates an inherent restriction on free speech where the speech is political and involves public officials. The State's interest in protecting against defamation must be balanced against right to Freedom of Speech. (3) Due to these First Amendment concerns, the United States Supreme Court required a higher standard of wrongfulness for defamation when political speech and public officials are involved.

General Principles of Free Speech

1. Right to free speech is not absolute 2. Is there a government regulation of speech? 3. Use same general approach to issues involving freedom of press (except broadcasting) and freedom of association.

Commercial Speech

1. The Government may protect the public against (prohibit) false commercial speech. The rational basis test is used for such regulation. 2. Truthful commercial speech is content-based speech and is protected by the First Amendment, but such regulation is evaluated under an intermediate scrutiny test.

How Is It Determined Whether a Law is Content Based?

A regulation is content-based if it is either a subject-matter restriction or a viewpoint restriction (viewpoint discrimination). ex. A sign regulation that prevented any sign within 500 feet of a foreign embassy that tends to bring the foreign government into "public odium" or "public disrepute", was a content- based regulation that must meet the strict scrutiny test. ex2. A Code of Judicial Conduct that prohibits judicial candidates from personally soliciting campaign funds does not violated the First Amendment. The content-based regulation meets strict scrutiny because there is a compelling interest in preserving public confidence in their judiciaries and the restriction was narrowly tailored.

The Reasonableness Approach

Criminal syndicalism laws made it a crime to advocate the overthrow of the U.S. government or industrial organization by force or violence. The Supreme Court upheld the laws as long as the government's laws and prosecution were reasonable

Overbreadth

Doctrines may place restrictions on content-based regulation, where protected speech is regulated along with unprotected speech, or content-based speech is regulated along with content neutral regulation. 1) A regulation is overbroad if it regulates a substantial amount of protected speech. 2) Overbreadth due to vagueness: it cannot be determined what speech is being regulated. 3) Vagueness alone: implicates procedural due process.

Regulation of Commercial Speech

Government may protect the public against (prohibit) false commercial speech. b. Truthful commercial speech may not be prohibited unless, under the Central Hudson test; the following requirements for the regulation are met: (1) The regulation concerns lawful activity that is not misleading, (2) There is a substantial government interest: (3) The restriction directly advances the government interest; and (4) The restriction is no more restrictive than necessary. c. Even where these requirements are met, invalidity of the regulation may be based on the government's purpose to keep truthful information away from the public, and the government purpose may not regulate consumer choice. d. Overbreadth doctrine does not apply: Commercial speech is content-based protected speech; thus there can be no confusion or overlap with regulation of unprotected speech or content-neutral speech.

Infringement of Freedom of Speech

Laws the significantly burden speech: laws that allow civil liability for expression; prevent compensation for speech; compel expression; condition a benefit on foregoing speech; pressure individuals not to speak; the right not to disclose one's identity when speaking.

Prior Restraint Doctrine

Legal doctrine that gives individuals the right to publish without prior restraint- that is, without first submitting material to a government censor. Regulates speech before it occurs. 1) Presumed invalid 2) Watch for injunctions, censorship, licensing restrictions 3) Collateral Bar rule: for injunctions violating 1st Amendment rights must be appealed on the issue; 1st Amendment argument cannot be used to defend against contempt for violating injunction.

What is speech?

Pure speech: an expression of ideas through communication. a. Definition: a particularized message understood by an audience. 2. Pure conduct: government can regulate 3. Symbolic speech or expressive conduct: a. Use O'Brien test: (1) Is the regulation of the conduct within the constitutional power of the government? (2) Does the regulation further an important or substantial government interest? (3) Is the government interest unrelated to the suppression of free expression? (4) Is the incidental restriction on free speech no greater than is essential to the furtherance of the governmental interest?

content-based regulation of speech

Regulation of speech with a communicative impact using either a subject matter restriction or a viewpoint discrimination: a. Communicative impact: particularized message and understood by audience; can include symbolic conduct. b. Viewpoint discrimination: disfavoring speech based on the ideas or views expressed; free speech includes freedom of thought. c. Content-based regulation of speech includes the freedom not to speak, freedom not to be compelled to disclose, and freedom to receive information. d. Content-based regulation of speech is evaluated under the Strict scrutiny test: the regulation must serve a compelling government objective and is necessary (narrowly drawn). e. Content regulation can be on its face or as applied. f. Overbreadth and Vagueness doctrines may place restrictions on content-based category. 1) A regulation is overbroad if it regulates a substantial amount of protected speech. 2) Overbreadth due to vagueness: it cannot be determined what speech is being regulated. Vagueness alone

Unprotected Speech

Speech that is not protected by the First Amendment and may be forbidden by the government. Unprotected speech is content-based regulation that is reviewed under the rational basis test.

Content-Based Regulation

The government has no power to restrict expression based on its message, its ideas, its subject matter, or its content. (1) Content-based regulation is presumptively invalid. (2) Strict Scrutiny is used to evaluate content-based regulation if it does not fit into a category of unprotected speech.

Content-neutral regulation of speech

The regulation is not concerned with the content of the speech, but only the time, place, or manner of the speech. A time, place, or manner regulation is classified according to the "forum" of the speech. b. A time, place, or manner restriction uses intermediate scrutiny with three elements: (1) Significant government interest (2) Narrowly tailored (3) Leaves open alternative channels. c. Intermediate scrutiny test applies to: (1) Public forum: traditional (streets, sidewalks) (2) Designated public forum (places designated by the government for public use of expression). d. Rational basis test applies to: (1) Non-public forum (a) Includes limited/controlled public property (b) Military bases, airports, prisons, train, or bus stations (c) Private property (2) Rational basis test: regulation is rationally related to a legitimate government objective with alternative channels. e.Watch for viewpoint neutrality (government must maintain viewpoint neutrality).

Content-Neutral Regulation

The regulation is not concerned with the content of the speech, but only the time, place, or manner of the speech. The regulation must be viewpoint neutral and subject matter neutral. (1) Content-neutral regulation is evaluated by intermediate scrutiny.

Unconstitutional Conditions

This doctrine is based on the principle that the government cannot condition a benefit on the requirement that a person forgo a constitutional right. The government may not deny a benefit to a person because he exercises a constitutional right.

Unprotected and Less Protected Speech

Unprotected Speech: there are some categories of unprotected speech that the government can prohibit and punish. 2.Although unprotected speech is based on subject matter and is therefore content-based regulation, such laws are reviewed under the rational basis test and not strict scrutiny. Speech and Incitement of Illegal or Lawless Activity a. The unprotected speech at issue is not the advocacy of violation of the law, but rather the incitement of illegal activity that would result in a substantial likelihood of imminent harm.

Vagueness and Overbreadth: facial challenges to invalidate the regulation of speech.

Vagueness: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. Vagueness also violates due process. b. Overbreadth: A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated

Prior Restraints

Where an administrative system or judicial order prevents speech from occurring. b. There is a strong presumption against prior restraints. c. Collateral Bar rule: injunctions allegedly violating 1st Amendment rights must be appealed on the issue and the 1st Amendment argument cannot be used to defend against contempt for violating the injunction.

Some categories of speech fall outside 1st Amendment protection or receive less protection:

a. Fighting words b. Incitement to violence, unlawful action, or treason c. Hate speech d. Obscenity e. Defamation f. False commercial speech g. Speech in schools h. Broadcasting i. Government Speech, Government Funding

Viewpoint Discrimination

unconstitutional government regulation of speech expressing a particular view on a subject