First Amendment

Speech of Public Employees

(1) The employee must prove that an adverse employment action was motivated by the employee's speech; if the employee does this, the burden shifts to the employer to prove by a preponderance of the evidence that the same action would have been taken anyways. (2) The Speech must be deemed to be a matter of public concern (3) The Court must balance the employee's speech rights against the employer's interest in the efficient functioning of the office.

Aid to Parochial Schools Will Be Upheld if:

(1) the aid must be available to all students enrolled in public and parochial schools; aid that is available only to parochial school students is sure to be invalidated. (2) The aid is more likely to be allowed if it is provided directly to the students than if it is provided to the schools. (3) The aid will be permitted if it is not actually used for religious instruction.

Evolution of Incitement laws

- During World War I and the years immediately following it, the Supreme Court articulated and applied the "clear and present danger test." - In the 1950s, during the McCarty era, the Court reformulated the clear and present danger test as a risk formula; whether speech was protected depended on the gravity of the evil compared with its likelihood. - Most recently, since the late 1960s (Brandenburg), the Court has narrowly denned incitement to maximize protection for speech. Under this approach, advocacy can be punished only if there is a likelihood of imminent illegal conduct and the speech is directed to causing imminent illegality.

The Clear and Present Danger Test (Pre-Dennis Formulation)

1. Likelihood of 2. Imminent, 3. Significant Harm

Expression That Provokes a Hostile Audience Reaction

1. Police officers have an affirmative duty to protect the speaker and her right to free speech first. a. This duty ends when that reasonable duty can no longer control the crowd and danger is imminent, then police can step in or even arrest the speaker. b. Must have physical violence to have a hostile audience

Nonpublic Forums

1. Property that is not by tradition or designation a public forum for communication 2. State may reserve this property for its intended purposes, so long as the regulation of speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view a. reasonable basis review 3. Gov't can restrict on the basis of content but not on the basis of VP

Designated Public Forums

1. Public property that the gov't has voluntarily opened for use by the public as a place for expressive activity 2. Same restrictions apply that apply to traditional public forum while it is designated as a public forum 3. To determine if it is a DPF: a. Purpose Approach: whether the purpose of the property is to allow expressive activity i. to determine purpose, look at what the owner did or said b. Compatibility Approach: if the objective, physical characteristics of the property at issue and the actual public access and uses which have been permitted by the gov't indicate that expressive activity would be appropriate and compatible with those uses, the property is a public forum. Even if a designated public forum has been created, the government may limit the use of that forum based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.

The Four Major Theories Why Speech is Protected

1. Self-governance 2. Market Place of Ideas 3. To promote autonomy 4. Promoting tolerance

Requirements for Licensing

1. The government has an important reason for licensing 2. Clear criteria leaving almost no discretion to the licensing authority, ex. a set of objective factors. 3. There must be procedural safeguards, such as a requirement for prompt determinations as to license requests and judicial review of license denials.

Different Tests Under the Establishment Clause

1. Three-Prong Lemon Test 2. Coercion Test 3. Endorsement Test

Establishment Clause

1. Where gov't actively promotes religion through an affirmative action 2. Look at what gov't is actually doing Typical Establishment Clause Challenges: i. School prayer ii. Religious symbols / gov't religious sp., and iii. Financial Aid The Court has said that a state interest in avoiding an Establishment Clause violation may be characterized as compelling, and therefore may justify content-based discrimination.

Endorsement Test for Establishment Clause

1. Whether gov't intended message was to endorse religion (subjective) and 2. a reasonable person actually believed the gov't message was to endorse religion (objective) O'Connor

Overbreadth

A law is unconstitutionally overbroad, if it regulates substantially more speech than the Constitution allows to be regulated, and a person to whom the law constitutionally applied can argue that it would be unconstitutional as applied to others. The Court does not use the overbreadth doctrine in relation to commercial speech because there is less reason to fear that commercial speech will be chilled because of the economic motivations that inspire such expression.

Vagueness

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. Courts are particularly troubled about vague laws restricting speech out of concern that they will chill constitutionally protected speech.

Public Figure v. Private Figure

A public figure thrusts himself into the vortex of the relevant public issue or engages the public's attention in an attempt to influence the issue's outcome.

Prior Restraint

Administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.

The Collateral Bar Rule

An injunction must be obeyed until it is set aside, and that persons subject to the injunction who disobey it may not defend against the ensuing charge of contempt on the ground that the order was unconstitutional

Nude Dancing

Applying the Four tests: 1. Apply O'Brien Test: ordinance is CN and regulating expressive conduct, not speech ( passes because not targeted at nudity that expresses an erotic message) 2. Not within 1st Amend. because it regulates conduct: ordinance is CN and no constitutional scrutiny is needed because it is a general law regulating conduct 3. Secondary Effects: gov't can regulate because of the secondary effects 4. Apply Strict Scrutiny: nude dancing conveys a message and regulate is CB

Lemon Test for Establishment Clause

Ask whether: 1. A statute has a secular legislative purpose 2. Its principal or primary effect advances nor inhibits religion; and 3. It fosters an excessive gov't entanglement with religion. The Lemon test is favored and used by Justices taking the strict separationist approach to the establishment clause. It also is used by Justices taking the neutrality approach, although they emphasize whether the purpose or effect is to symbolically endorse religion. Justices favoring the accommodationist approach urge that overruling of the Lemon Test.

Expression That Discloses Confidential Information & Prior Restraints

Balancing test that balances the individual's free speech interest against the gov't's interest in confidentiality/security. How to balance: 1. 1st Amend. interest is greater if: a. the gov't has other means available to protect the confidential info or b. the gov't could punish with criminal sanctions after the fact 2. Heavy burden of gov't to demonstrate the weightiness of its interest 3. Whether the speech is high- or low-value speech or political speech. 4. Whether the speech is true 5. Whether the scope of the restraint is narrow or broad.

Fighting Words

Chaplinsky held this category of speech to be unprotected by the First Amendment. Fighting words are defined as those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. The cumulative impact of later decisions make it unlikely that a fighting words law could survive. If the law is narrow, then it likely would be deemed an impermissible content-based restriction because it outlaws some fighting words, but not others, based on the content of the speech. If the law is broad, then it probably would be invalidated on vagueness or overbreadth grounds. Words that by their very utterance inflict injury or tend to incite an immediate breach of the peace. To be fighting words, it must: 1. be a direct, personal attack 2. be face to face; and 3. be communicated orally.

Child Pornography Exception

Child pornography is outside the 1st Amend. protection 1. Child pornography: sexual material involving real children as models/actors 2. Result of categorical balancing: state's interest in protecting children and eliminating the financial incentive to make child pornography greatly outweighs any free speech interests 3. Can prohibit private possession as well 4. No obscenity requirement: a. does not have to appeal to prurient interest b. Need not be patently offensive c. Material need not be considered as a whole d. Material can have value and still without 1st Amend. protection

Profane and Indecent Language

Cohen reflects the basic First Amendment principle that the government may not prohibit or punish speech simply because others might find it offensive. Exception: schools and broadcast media

Four Part Analysis for Commercial Speech

Commercial speech is speech that proposes a commercial transaction. Central Hudson Test Four-part analysis for commercial-speech cases: 1. Is the advertising false or deceptive or of illegal activities, areas which are unprotected by the first amendment? 2. Is the government's restriction justified by a substantial governmental interest? 3. Does the law directly advance the government's interest? 4. Is the regulation of speech no more extensive than necessary to achieve the government's interest? Lately, it seems that the forth prong has been changed to "is the regulation narrowly tailored to achieve the government's goal. Sounds like intermediate scrutiny

What is Commercial Speech

Commercial speech is speech that proposes a commercial transaction. However, Bolger offers a more refined test for determining whether speech is commercial in nature: 1. It is an advertisement of some sort 2. It refers to a specific product, and 3. the speaker has an economic motivation for the speech

What Determines the Status of a Forum

Considerations: 1. Tradition of availability 2. The extent to which speech is incompatible with the usual functioning of the place. 3. Whether the primary purpose of the place is for speech.

The Lewd, Profane, & the Indecent

Factors to determine if regulation is constitutional: i. Whether it is a total ban 1. If total ban, it is probably unconstitutional 2. same goes for a virtual total ban: 10pm - 6am ii. The Medium 1. If audience can avert eyes or ears, more likely ban is unconstitutional 2. If medium invades the home, more likely ban is constitutional 3. Internet: new medium so not governed by precedent, requires affirmative steps iii. The nature/value of the speech iv. Whether there is exposure to children v. Whether there is a captive audience

Traditional Public Forum

Forums traditionally used for expressive conduct (Streets and Parks) Requirements for regulation: 1. The regulation must be content-neutral unless the content-restriction is justified by strict scrutiny. 2. It must be a reasonable time, place, manner restriction that serves an important government interest and leaves open adequate alternative places for speech. 3. A licensing or permit system for the use of public forums must serve an important purpose, give clear criteria to the licensing authority that leaves almost no discretion, and provide procedural safeguards. 4. The restriction must be narrowly tailored to achieve the government's purpose.

School Vouchers - Private Choice Rule

Giving Money based on private choice is okay, but giving money based on government choice is not okay 1. Principle of private choice helps to ensure neutrality 2. Private choice breaks the chain between the aid/money & religion 3. Private choice must be independent

Coercion Test for Establishment Clause

Gov't may not coerce anyone to support or participate in religion or its exercise and may not directly benefit religion in such a degree that it in fact establishes a state religion or religious faith, or tends to do so. Scalia and Kennedy

False Statements of Fact & Defamation / Libel

How to apply 1st amendment rules 1. Focus on status of plaintiff - public official or private individual? 2. Look at the nature of the speech - matter of public or private concern? 3. Look at the defendant - does press have a greater freedom of action than others?

When the Press may be held liable for publishing truthful information

If a newspaper publishes truthful information that is lawfully obtained and concerns a matter of public significance, no sanction can apply "absent a need to further a state interest of highest order."

Free Exercise Clause

If an individual can establish that the government has taken action specifically designed to suppress a religious practice, then the governmental action will be subject to strict scrutiny. Under Smith, a free exercise claim challenging neutral laws that happen to regulate or prohibit religiously motivated conduct will be subject to heightened scrutiny only if such claims are joined with the claimed violation of another fundamental right (parents' fundamental right to direct the education of their children). Additionally, the government may accomodate a religious belief or practice in order to permit the free exercise of religion, but in doing so, the government may not violate the underlying principles of the establishment clause. The Court has permitted the government to accommodate a religious practice, while at the same time not requiring that similar benefits be granted to parallel secular practices.

The Risk Forumla Approach (Dennis)

In each case courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. In other words, the approach taken by the plurality in Dennis (professor teaching four Socialist books) makes probability and imminence -two seeming requirements of a clear and present danger test- irrelevant. If the harm is great enough, such as the overthrow of the government, then speech advocating it can be punished without any showing of likelihood or immense.

Facially Content Neutral Laws that have an arguable content-based effect

It appears that a content-based restriction on the face of the law will be treated as content-neutral if it is motivated by a desire to prevent adverse secondary effects of the speech.

Market Place of Ideas Theory

John Stuart Mills "On Liberty". i. Comes from Laissez Faire Economics ii. Government should be neutral and let buyers and sellers deal in the marketplace iii. There is no hierarchy of ideas: the marketplace determines the value of speech iv. Issue of Access

Prior Restraint of True Information

NYTimes v. U.S.; U.S. v. Washington Post (Pentagon papers cases) a. Test: heavy presumption against constitutionality b. Brennan: proof of event "kindred to imperiling the safety of a transport already at sea" can justify prior restraint Freedman v. Maryland Motion picture censorship board a. Test: Where licensing must occur, must have safeguards for content-based decisions (1) Burden of showing content unprotected on censor (2) Meaningful and quick judicial review (minimize delay)

Public Official/Figures, Libel

New York Times v. Sullivan: A public Official cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with: 1. "actual malice" (knowing or reckless falsehood or disregard for the truth)

When May Government Regulate Conduct That Communicates?

O'Brien Test A government regulation is sufficiently justified if it is: 1. Within the constitutional power of the government; 2. If it furthers an important or substantial governmental interest; 3. If the governmental interest is unrelated to the suppression of free expression; and 4. If the incidental restriction is no greater than is essential to the furtherance of that interest. In other words, the government can regulate conduct that comunicate if it has an important interest unrelated to suppression of the message and if the impact on communication is no more than necessary to achieve the government's purpose. VERY SIMILAR TO INTERMEDIATE SCRUTINY.

True Threats

Objective Standard: whether a reasonable person would foresee that the statement would be interpreted by an audience as a serious expression of intent to harm or assault.

Obscenity

Obscenity is categorically unprotected speech. Test: i. Whether the average person, applying contemporary community standards would find the dominant theme of the material, taken as a whole, appeals to the prurient interest. 1. Community standard a. Allows communities to determine. protects both conservative communities and more open, urban areas. ii. Whether the work depicts or describes sexual conduct, specifically defined by state law, in a patently offensive way; AND 1. Community standard iii. Whether the work lacks serious literary, artistic, political, or scientific value. 1. National and not community standard 2. De novo review on this factor 3. Need not show that speech is utterly without social value.

Radio and Content Regulation

Pacifica Prior warnings of indecent language on a radio program is not enough to shield the listener and can be regulated Indecent does not mean prurient; indecent = nonconformance with accepted standards of morality

Private Individuals, Matters of Public Concern, and Libel

Private individuals may recover for defamation, even though they have a matter of public concern, if they prove 1. Defamatory untrue statement, 2. at least negligence, and 3. actual damages, including general damages

Content-Based Distinctions within Categories of Unprotected Speech

R.A.V. v. City of St. Paul, the Court indicated that generally content-based distinctions within categories of unprotected speech must meet strict scrutiny, subject to two exceptions. 1. One is that a content-based distinction is permissible if it directly advances the reason why the category of speech is unprotected. (Cross-Burning) 2. A law will not be deemed to be content-based if it is directed at remedying secondary effect of speech and is justified without respect to content.

Court Orders to Protect Fair Trials

Requirements to be constitutional: 1. There has to be a showing of extensive publicity without a prior restraint that will jeopardize the ability to select a fair and impartial jury. 2. It must be determined that measures short of an order restraining all publication would not have insured the defendant a fair trial. Prior restraint is permissible only if it is determined that one would be a workable and effective method of securing a fair trial.

Political Speech

Restrictions on political speech are subjected to strict scrutiny, due to its very high value. Buckley v. Valeo held the spending of money to be political speech. Buckley does not treat spending money on a campaign to be symbolic conduct and thus under the O'Brien test, but as pure political speech and thus, strict scrutiny applies - however, strict scrutiny does not apply to contribution limits, only to expenditure limits.

Content-Based Distinction within a Category of Unprotected Speech

Scalia's opinion in R.A.V. v. City fo St. Paul indicates that content-based distinctions within a category of unprotected speech will have to meet strict scrutiny, subject to two exceptions. 1. One is that a content-based distinction is permissible if it directly advances the reason why the category of speech is unprotected; for example, an obscenity law could prohibit the most sexually explicit material without having to ban everything that is obscene. 2. A law will not be deemed to be content-based if it is directed at remedying secondary effects of speech and is justified without respect to content.

Self-Governance Theory

Self-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare, that, casting a ballot is assumed to express. Also, Speech checks the abuse of power by public officials and said that through speech voters retain a verto power to be employed when the decisions of the officials pass certain bounds.

Subject Matter Neutrality

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

Time, Place, Manner Restrictions (Three Part Test) Ordinances

Such restrictions are constitutional provided that they are: (1) Justified without reference to the content of the regulated speech; (2) They serve a significant governmental interest, and that in doing so they (3) Leave open ample alternative channels for communication of the information.

Prurient Interest

That which incites lustful or lascivious thoughts.

Court Orders as Prior Restraint

The Court clearly has held that judicial orders preventing speech constitute a prior restraint. Troopship exception: The court held that not all court orders stopping speech are unconstitutional. Those orders which prevent actual obstruction to the government's recruiting service or as relating to the publication of sailing dates of transports or the location and number of troops.

Red Lion

The Court held that a state had no difficulty in upholding the FCC's authority to impose upon broadcast media the right to respond to personal attacks and to certain political editorials under the "fairness doctrine." The primary difference the Court relied on was the presumed scarcity of available frequencies. Because of the scarcity, the privilege of a broadcast license carried with it the responsibility to act in the public interest, and the FCC could reasonably conclude that a right to reply for personal attacks and political editorials reflected a proper balance of First Amendment concerns by ensuring that the fullest range of information is made available to the public with only a limited intrusion on the editorial prerogative of the broadcasters.

Penalty Enhancement For Hate Motivated Crimes

The Supreme Court has held that the government may provide for penalty enhancement for hate motivated crimes. However, the hate motivation, just like any other factor that increases a sentence, requires the jury to satisfy the beyond the reasonable doubt standard.

Promoting Tolerance

The claim is that tolerance is a desirable, if not essential, value, and that protecting unpopular or distasteful speech is itself an act of tolerance.

Content-Based Regulations

The general rule is that content-based regulations of speech must meet strict scrutiny, while content-neutral regulation must meet intermediate scrutiny. Content-based regulations are presumptively invalid. In Turner Broadcasting System v. FCC, the Court said that the general rule is that content-based restrictions on speech must meet strict scrutiny, while content-neutral regulation only need meet intermediate scrutiny. The requirement that the government be content-neutral in its regulation of speech means that the government must be both viewpoint neutral and subject matter neutral. The Court has indicated that a facial content-based restriction will be deemed content-neutral if it is motivated by a permissible content-neutral purpose; to combat undesirable secondary effects. See Renton v. Playtime Theaters.

Freedom of Association For Government Employees

The government may require that a public employee swear to uphold the Constitution of the country and its laws. The government, though, may not deny employment to individuals for their group memberships - or require an oath about them - unless the focus is solely on whether the persona actively affiliated with the group, knowing of its illegal objectives, and with the specific intent of furthering those goals.

The Unconstitutional Condition Doctrine

The principle that the government cannot condition a benefit on the requirement that a person forgo a constitutional right. The corollary is that the government may not deny a benefit to a person because he exercises a constitutional right. The applicability of this doctrine is all over the place. In Velazquez, Justice Kennedy said that the Court has held that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or instances, like Rust, in which the government used private speakers to transmit information pertaining to its own program.

The Right Not to Speak

The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind.

Public Disclosure of Private Facts

This tort exists if there is publication of nonpublic information that is not of legitimate concern to the public and that the reasonable person would find offensive to have published. Unlike defamation where the information is false and a retraction conceivably could lessen the harm to reputation, the tort of public disclosure of private facts involves the publication of true information and the harm that is done once publication occurs. The Supreme Court has held that the First Amendment prevents liability for public disclosure of private facts if the information was lawfully obtained from public records and is truthfully reported, unless there is a state interest of the highest order.

Advancing Autonomy

To engage voluntarily in a speech act is to engage in self-definition or expression. Protecting speech because it is a crucial aspect of autonomy sees expression as intrinsically important.

Speech That Induces Unlawful Conduct (Incitement)

Under Brandenburg, advocacy of violence is prohibited only when: a. intent to create law violation and objective language: advocacy is directed at inciting or producing imminent lawless action b. immediate danger: the advocacy calls for immediate illegal activity; and c. likelihood: the advocacy is likely to incite or produce such illegal activity Proving Intent: a. Using express language goes squarely to showing intent; otherwise, intent may be difficult to prove b. Brandies: Past evidence could be used to show that defendant intended to cause illegal activity. Also, government must wait until the last minute to act because the value of free speech outweighs the gov't's interest in preventing the illegal conduct. Brandenburg did not, however, overrule Dennis. In those contexts in which the speech is public and overt, the formular of Justice Brandeis's Whitney Concurrence provide a good judicial measure of constitutionality. i. In contexts in which the speech is covert - part of some type of an organized, clandestine conspiracy - the balancing test applied by the Dennis majority is preferred.

What Makes Conduct, Speech?

Under Spence, conduct is analyzed as speech under the First Amendment if, first, there is the itnent to convey a specific message and, second, there is a substantial likelihood that the message would be understood by those receiving it.

Viewpoint Neutrality

Viewpoint Neutral means that the government cannot regulate speech based on the ideology of the message. The significance of viewpoint neutrality is in the context of when the government inevitably must make choices based on the content of the speech.

Cross-Burning

Virginia v. Black struck a middle course: cross burning is protected speech and cannot be completely outlawed, but the government may prohibit it when done in a manner that constitutes a "true threat."

Texas Monthly v. Bullock

When law burdens non-religious organizations and provides benefits exclusively to (alleviates burden on) religious organizations, it violates the establishment clause

Private Individuals, Matters of Private Concern, and Libel

Where the speech is about a aprivate individual and matters of private concern, apply the common law defamation: The publication of a false written or oral statement that subjects persons to contempt, ridicule, or obloquy 1. Statement with defamatory meaning and 2. False state of fact

Zoning Ordinances to Regulate the Location of Adult Entertainment Establishments

Young and Renton establish broad power for cities to use zoning ordinances to regulate the location of adult entertainment establishments. The Court said that the appropriate inquiry is whether the Renton ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues for communication.

Ceremonial Deism

i. Those things like "in God we trust," "one nation under God," "God save the US and this honorable Court" ii. They have lost any significant religious content through rote repetition iii. Have strong secular purposes

Secondary Effects Doctrine

i. gov't is not trying to regulate the content of the speech, but the secondary effects of the speech a. Zoning ordinances are okay even though they are probably content-based in reality b. Gov't cannot simply assert there are secondary effects but must have some evidence