First Amendment

General First Amendment Defenses

+ Vagueness + Overbreadth + Prior Restraint

General First Amendment Tests

+ Viewpoint Discrimination + Strict Scrutiny Test + Intermediate Scrutiny (Content Neutral Analysis)

Overbreadth (Broadrick to Brockett)

R: A statute is overbroad if it prohibits speech that is both protected [and] unprotected. ► [Striking Down Statutes] (Broadrick v. Oklahoma) R: For a court to find a statute facially invalid, and therefore strike it down as unconstitutional, the statute's overbreadth must [not only] be real, [but] substantial as well. A court will only do this when the claim at bar involves unprotected speech. ► [Narrowing Statutes] (Brockett v. Spokane Arcades) R: A court will more narrowly construe a statute, rather than striking it down, when either: (i) The statute is facially valid because the overbreadth is real, but not substantial; [OR] (ii) The statute is facially invalid (because the overbreadth is real and substantial) [but] the speech seeking to be suppressed is constitutionally protected.

Vagueness (Coates v. Cincinnati)

R: A statute is unconstitutionally vague if a person of average intelligence would have to guess as to its meaning. (Coates v. Cincinnati) → When context doesn't tell you the answer. ► [Different from Ambiguity] R: In an ambiguous statute, there are two possible meanings, but only one is plausible (given context).

Intermediates Scrutiny/Content Neutral Analysis (Alameda Books)

R: If content-neutral, a restriction on speech will be upheld as long as it serves a substantial government interest AND leaves open reasonable alternative avenues of communication.

Strict Scrutiny Test (United States v. Playboy)

R: Laws restricting speech on the basis of content must be narrowly tailored to achieve a compelling state interest. [Ex]: Pornography is protected by the First Amendment and any restriction placed thereon is subject to strict scrutiny.

Viewpoint Discrimination (Alameda Booksellers)

R: No court has ever permitted viewpoint discrimination. [EXCEPT]: When the government is the speaker [OR] educator.

[Incorporation of the First Amendment Against the States] (Gitlow)

R: The First Amendment is incorporated against the states through the 14th Amendment.

[Prior Restraint] (Near to Stuart)

◊ R: Generally, Prior Restraints on protected [or] unprotected speech are subject to a per se rule of invalidity. → [Exceptions] (Near) R: Exceptions to prohibition on Prior Restraints - when the restraint . . . (1) Can prevent actual obstruction to the military's recruiting service; (2) Can prevent publication of the sailing dates of ships or location of troops; (3) Concerns obscene publications; (4) Concerns incitements to acts of violence and overthrow (by force) of orderly government; [OR] (5) (Possibly) Concerns certain private rights (maybe libel). [+] [Quasi-National Security Exception] (New York Times Plurality) R: The plurality opinion in New York Times suggests that there is some kind of national security exception to prior restraint when the speech would create an immediate peril to people. + [Injunctions/Restraining Order Balancing Test] (Stuart) R: With respect to gag orders, the First Amendment requires (under Stuart) a balancing test involving: (a) The nature [and] extent of pretrial news coverage; (b) Whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; [and] (c) How effectively a restraining order would operate to prevent the threatened danger. □ [Forms of Prior Restraint] 1. Censorship Regimes [rare]; [OR] 2. Injunctions. □ [Collateral Bar Rule] (Walker v. Birmingham) R: An unconstitutional injunction has the same binding effect as a constitutional injunction. → Injunction binding until it has been lifted. → Does not apply in CA State Court or the 1st Circuit