First Amendment
Fighting Words
"Fighting words" are not protected by the 1st Amendment. (Chaplinsky) Fighting words is abusive, profane, or indecent words directed at the hearer that would immediately provoke violence from the average hearer in similar circumstances, where violence is actually likely to occur.
Threats
"True threats" are not protected by the 1st Amendment. Speech becomes a threat if a reasonable person would foresee that hearers would interpret the statements as a serious expression of intent to harm or assault.
Defending Against an Obscenity Statute
1) read statute--if not specifically defined in statute, can't be obscene under Miller; 2) argue that it is not "patently" offensive; 3) focus on "taken as a whole"--is just part of it obscene?; 4) work on "local community standard"--more permissive community = less likely to be obscene; 5) focus on the "serious" value of the work (nat'l standard--is it valuable in any community?).
Freedom of Religion--Establishment clause
4 Tests: Lemmon--purpose/effect of advancing or inhibiting a religion or excessive entanglement of gov't and religion (gov't programs/funding); Lynch--non-endorsement test (gov't displays); Lee--anti-coercionin the circumstances (gov't practices); Greece--longstanding practices lose their coercive power (ceremonial prayer; in God we trust, etc.)
Defenses
A defendant can challenge a speech restriction with an overbreadth defense or a vagueness defense.
Overbreadth
A defendant with unprotected speech can bring an overbreadth challenge against a statute that is so broad on its face it can also reach protected speech by showing that a substantial amount of speech would be chilled by application of the statute. The state is protected if the state high court has applied the statute in such a way that it only reaches unprotected speech. Prosecution can ask for a narrowing instruction, limiting the ruling to this unprotected speech. Defendants with protected speech cannot use overbreadth--they are challenging the statute "as applied."
Public Forum
A public forum is state property that has time out of mind been used as a public forum for expression, and speech restrictions in public forums are treated the same as generally applicable law.
Content-based restrictions
A restriction is content-based if you have to look at the content of the speech to know if it is restricted. If a restriction is content-based, the next question is whether the restriction amounts to viewpoint discrimination. If it is viewpoint discrimination, it is unconstitutional. If it is not viewpoint discrimination, the next question is what category of speech it is: unprotected speech, low-value speech, or regularly protected speech.
Vagueness
A statute is susceptible to a vagueness challenge if persons of common intelligence must necessarily guess at its meaning and differ in its application. Can we know whether a substantial amount of speech would fall under the statute? What about behavior that is clearly within the application of the statute?
Freedom of Religion--Exercise
A statute only violates the 1st Amendment if the law in its terms burdens the plaintiff's free exercise, or if the purpose of the act was to interfere with the plaintiff's free exercise. RFRA (Religious Freedom Restoration Act) basically codifies strict scrutiny at the test for free exercise of religion.
Content-neutral Restrictions
An observer does not need to know the content of expression to know it is prohibited under a content-neutral restriction. Content-neutral restrictions receive intermediate scrutiny: the state must prove a substantial/significant interest; the law must be narrowly tailored (reasonable fit/no less-restrictive alternative measures); and there must be ample alternative avenues of communication (both qualitative and quantitative).
Public Concern and Defamation
Because "public concerns" have heightened 1st Amendment protection, a private citizen suing for defamation regarding a public concern will have to prove actual malice to recover presumed or punitive damages, but may recover actual damages on a lesser showing of fault.
Child Pornography
Because of the state interest in safeguarding the well-being of the child, and child porn is intrinsically linked with child abuse, and allowing the market creates demand for child porn, and since child porn is low value speech, it can be regulated so long as the material depicts child conduct described in the relevant statute. (cut out almost all of Miller test--prurient interest, patently offensive, considered as a whole).
Public Figures/Officials and IIED
Cannot sue for IIED--"outrageous" standard for conduct is too malleable and would result in jurors voting their personal taste.
Freedom of the Press
Case law on freedom of the press shows that it is not particularly different from freedom of speech. Ok to require reporter to testify before state and federal grand juries about his sources.
Commercial Speech
Commercial speech, historically not protected by the 1st Amendment, receives protection after Virginia State Board of Pharmacy, because a well-informed populace makes better decisions. The State can still regulate commercial speech, but cannot ban it.
Strict Scrutiny
Compelling interest: must be exceedingly persuasive, usually some form of police power; no post hoc rationalizations. Narrow tailoring: not over- or under-inclusive.
When is Conduct Speech?
Conduct is speech if you can tell immediately what the person is trying to say (peace symbol, middle finger, fist, e.g.).
Content-based restriction--regular protection
Content-based restrictions on expression that receives regular 1st Amendment protection are subject to strict scrutiny: the state must show a compelling interest and that the law is narrowly tailored to address that interest.
1st Amendment Deference
Court used to give deference to the states on their determination of danger of serious lawbreaking, but not anymore. May give deference to Congress and the executive in determining danger of lawbreaking with respect to classified info and national security.
Defamation/False Statements of Fact
False statements of fact are protected by the 1st Amendment, limiting the ability to recover for libel or slander.
Generally applicable restrictions on speech
Generally applicable speech restrictions are either content-neutral or content-based. Content-based restrictions receive considerably more scrutiny, as they are closer to viewpoint discrimination.
Confidential Information
Generally, the Court will not allow prior restraint, even against the release of confidential/classified information. If classified information is obtained lawfully by the speaker, they are protected by the 1st Amendment. The Court takes the stance that the State should have taken better steps to prevent disclosure.
Hate Crimes
Hate crime laws and punishment escalators will generally be upheld (regulate conduct, not expression).
Content Restrictions and Secondary Effects
If State action is advances on the grounds of its secondary effects, the Court will treat the restriction as content neutral (zoning restrictions on adult theaters with secondary effects of crime, lower property values, homelessness, etc).
Symbolic Conduct
If a facially conduct statute is used to prosecute conduct claimed as expression, it must go through the O'Brien test. A facially conduct statute used to prosecute speech, or a facially speech statute used to prosecute speech or conduct are treated as restrictions on speech and subject to 1st Amendment protection.
State Property or General Applicability
If a state action is not state speech, and not a prior restraint, the next question is whether the restriction addresses the use of state land, or is generally applicable. If it addresses state land, use public forum analysis; if it is generally applicable, move to content-based/content-neutral analysis.
Nonpublic Forum
If state property is not a public forum, and has not been opened up to outside speakers, the nonpublic forum doctrine applies: restrictions are permissible if they are reasonable in relation to the purpose of the property (which sometimes allows for content distinctions) and viewpoint neutral.
State Speech
If the government is actually the speaker by subsidizing transmittal of a message it favors, the State can place restrictions on speech, including viewpoint discrimination. If the government is not speaking, ordinary 1st Amendment scrutiny applies.
Prior Restraint--Licensing and Permits
If the state has certain safeguards in place (Freedman safeguards), potential plaintiffs will have to go through the licensing system and be denied before filing suit. Otherwise, they can file suit against the prior restraint. 1) Burden must be on the censor to prove that the expression is unprotected; 2) law must require a judicial determination to impose a valid restraint; 3) the law must require a prompt determination within a specified time period.
Designated Public Forum
If the state has opened up property for general access, it is a designated public forum and is treated the same as a public forum, except the state may close the forum when it chooses to (except to avoid a particular speaker).
Limited Public Forum
If the state opens up state property for selected speakers, it must allow access to other speakers of the same type. For those speakers it is treated as a public forum; with respect to everyone else, it is treated as a nonpublic forum.
Profanity and Children
In regulating profanity "protection of children" is generally not a sufficient interest to restrict communication between consenting adults (see the internet, 1-900 numbers).
Regulation of Political Campaign Solicitations/Contributions
Money is speech and the Court has recently struck down basically any limitation on solicitation or contribution of campaign funds, suggesting that they will only uphold one with evidence of quid pro quo corruption.
Right to Associate
NAACP v. Alabama struck down membership list requirement for doing business in Alabama--would have violated right to privacy and right to associate. Roberts v. Jaycees limited the protection to purpose for which the group associates--admitting women does not change the purpose for which Jaycees associate (cf. Dale case--prohibiting gay scout masters is ok).
Right to Litigate
NAACP v. Button overturned a statute that tried to prevent the NAACP from hiring attorneys for victims of discrimination.
Obscenity
Obscenity is not protected by the 1st Amendment. Material is obscene if to an average person, taken as a whole and applying contemporary community standards, it appeals to the prurient interests, depicts or describes in a patently offensive way sexual conduct specifically defined by state law, and lacks serious literary, artistic, political, or scientific value.
Right not to speak
Ok to stay silent during pledge of allegiance; ok to cover up state motto on license plate. Free to speak your mind and free not to speak what is not on your mind.
Prior Restraint
Prior restraint is severely disfavored because it makes censorship easier, removes the public record and procedural safeguards of a trial, and prevents expression from ever reaching the marketplace. If a restriction is a prior restraint on speech it is presumed unconstitutional.
Profanity/Indecency
Profanity is protected by the First Amendment unless it falls into a category of unprotected speech, or creates an essentially intolerable invasion of privacy (it intrudes on the privacy of the home, or the captivity is such that viewers cannot practically avoid exposure; burden generally on the audience to avert their eyes/ears if possible).
Public Employees and First Amendment Protection
Public employees enjoy limited protection on their speech as an employee; the Court will balance the employee's interest as a citizen in commenting on matters of public concern against the interests of the State in promoting the efficiency of public services it performs through its employees (and how the statement interferes with those services).
Public Figures
Public figures for all purposes must prove actual malice in any defamation case, while public figures for a limited purpose only have to prove actual malice in defamation cases regarding the purpose for which they are a public figure.
"Side" 1st Amendment Rights
Right to litigate as a means of expression; Right to associate for purposes of expression; Right not to speak.
Incitement
Speech that incites lawbreaking is not protected by the 1st Amendment. (Brandenburg) Incitement is direct incitement language that creates a danger that lawbreaking is likely to occur imminently, sufficiently serious lawbreaking to warrant restriction of speech.
1st Amendment Progression
State Actor Gov't Speech Prior Restraint Public Forum Content-neutral--intermediate scrutiny Content-based--viewpoint discrimination; unprotectd, low value, regular.
New Categories of Unprotected Speech
The Court is very resistant to adding new categories of unprotected or low-value speech. See animal cruelty video statutes and anti-violent video game statutes.
Implication of the First Amendment
The First Amendment is only implicated if there is a State restriction on speech. If there is no State action, there is no first amendment violation.
O'Brien Test
The O'Brien test is applied to conduct statutes used to prosecute symbolic conduct. If a statute fails O'Brien, it is not invalidated but will have to pass ordinary 1st Amendment scrutiny. If a statute passed O'Brien, it is constitutionally valid. 1) Is the restriction within the State's constitutional power? 2) Does the restriction advance a substantial gov't interest? 3) Is the restriction unrelated to the suppression of speech? 4) Is the restriction no greater than necessary?
Hate Speech
The State can regulate hate speech if the statute uses an intent provision that limits the speech to unprotected category. Watch out for RAV v. St. Paul, though. (prohibiting cross burning with intent to intimidate ok, b/c it's at the extreme end of threats; prohibiting use of symbols known to be offensive not ok, b/c it borders on viewpoint discrimination, not an extreme form of fighting words).
Non-newsworthy Disclosure of Private Infomation
The State cannot punish publication of information that was obtained lawfully, because the state has other recourse to keep the information from being available.
Private figures, Private Concern and Defamation
To recover for defamation, a private individual must show at least negligence, and presumed and punitive damages may be awarded on less than a showing of actual malice.
Public Officials/Public Figures and Defamation
To recover for defamation, a public official or public figure must prove actual malice (knowingly false or reckless disregard for the truth--high degree of awareness of probable falsity). Actual malice standard does not apply to non-official conduct (personal life), except that statements with respect to criminal conduct are always relevant to fitness for office, so malice is always required.
Content-based restrictions and low-value speech
Types of "low-value" speech that receive 1st Amendment protection are false statements of fact (defamation), commercial speech, profanity/indecency, and confidential information.
Content-based restriction and unprotected speech
Types of speech that receives no 1st Amendment protection are fighting words, incitement, obscenity, and threats.
Subject Matter Distinctions
Within a category of unprotected speech, the State cannot restrict a particular subject matter unless the restriction is based on the same interest as the content restriction or the State can show an independent compelling interest.
