Free Speech and Regulation
Hill v. Colorado (2000)
F - A law made it illegal to approach someone closer than 8-feet within a 100 foot radius outside of an abortion clinic. Does this time, place, and manner restriction violate Free Speech? R - This doesn't violate the Free Speech Clause because this isn't suppressing specific content, but rather the manner of speech. People can still protest, just at a reasonable location
McCullen v. Coakley (2014)
F - A state law forbade anyone to stand outside of an abortion clinic within 35-feet to prevent people to protest those entering. This excluded other workers. R - Since this is a public forum due to the fact that these are public sidewalks, significant First Amendment rights are involved. As a threshold matter, the law does not need to be analyzed under strict scrutiny because it does not restrict certain content or one viewpoint. That said, the law is not narrowly tailored because it burdens more speech than is than is necessary to achieve the government's ends. Part of the petitioners' message is to have close conversations with women about abortion alternatives. The buffer zones do not allow for that type of communication. Because Massachusetts has not shown that strategies less intrusive than buffer zones do not work, the buffer zone burdens more speech than necessary. Further, there are already other ways in which to stop people from blocking access to an abortion clinic. C - The Court's opinion shows hostility towards the speech of abortion opponents. Further, the Court's discussion about the law being content-neutral is unnecessary. The law is actually content-specific. The law should have been subjected to strict scrutiny as a content-based restriction, and found to be unconstitutional on that analysis. S - McCullen v. Coakley is an important case because it discusses the significant problem around abortion clinics, in which abortion opponents stand outside clinics attempting to persuade women entering the clinic to change their minds about getting an abortion. The scene is fraught with emotion and people attempting to impose their will on others. Massachusetts' law was an attempt to avoid those types of scenes, yet the Court determined unanimously that a buffer zone violates the First Amendment.
Texas v. Johnson (1989)
F - Gregory Lee Johnson was convicted for desecrating a flag after publically burning an American flag in political protest at a Republican rally. Johnson then challenged his conviction under the Texas state law in a state court claiming the law violated his First Amendment right to freedom of speech. R - The Court first determines it is necessary to determine whether or not Johnson's conduct was expressive conduct. If it is, then Johnson would be permitted to invoke his First Amendment right. If the conduct is expressive then the Court must determine whether the state's law is related to suppressing free expression. If on the contrary, conduct is not expressive, the Court must apply the analysis for non-communicative conduct established in the United States v. O'Brien, 391 U.S. 367 (1968) decision. To appropriately determine if the O'Brien test applies, the Court must determine if Texas claims as interest in supporting Johnson's convictions unrelated to suppressing expression. The two interests stated are: preventing a breach of the peace and preserving the flag as a symbol of nationhood and national unity. Since no disturbance of the peace actually occurred because of the flag burning this reason is irrelevant. Preserving the flag for the stated purposes is related to the suppression of expression because Texan is concerned flag burning may lead people to believe the flag does not stand for national unity and nationhood or that the nation is not unified. O'Brien is not applicable. Johnson was convicted because of his expression of dissatisfaction with the policies of his country. The interest in preserving the special symbolic character of the flag is subject to the most exacting level of scrutiny. Precedent does not suggest a state may promote its view of the flag through prohibiting the expressive conduct of its citizens. The principle that the government cannot prevent expression it disagrees with is not contingent on the particular method one seeks to express an idea. As a result, it would be inconsistent to hold an individual is free to express disagreement with a political viewpoint in any manner except flag burning. It is nonsensical to allow a state to permit flag burning in some instances and not others as such a principle lacks discernable or defensible boundaries. As a result, the First Amendment cannot support Johnsons's conviction of flag burning for the purpose of political expression. The Court further stated that the best way to respond to the burning of an American flag is waving their own. This judgment does not weaken the flag's status in the American society. Instead, it strengthens its status, portraying it as a symbol of free expression on which the U.S. democratic system of governance is based. D - The American flag has a unique and symbolic place in the U.S. There is no other symbol more honored and respected. Historically it has become an embodiment of the U.S. There is no specific political party, point of view or political philosophy affiliated with the flag. As a result, it is unlikely that the First Amendment permits flag burning as a protected form of speech. Many find flag burning offensive even when used in the context of political protest. Johnson many express his opinions in other forms and the state statute is constitutional. S - Texas v. Johnson was the landmark case which established the right of American's to burn an American flag as a symbol of expression and stressed the importance of the First Amendment freedom of expression.Prior to this decision, the answer was very unclear
U.S. v. O'Brien (1968)
F - O'Brien was arrested after burning a draft card in front of a government building. He argued this violated his freedom of speech. R - The Court ruled in favor of the government because this wasn't a restriction on the content, but rather the manner of speech. The government has an interest in the draft card which outweighs his speech rights. A government regulation is justified if (i) it is within the Government's constitutional power; (ii) it furthers an important or substantial governmental interest; (iii) the governmental interest is unrelated to the suppression of free expression; and (iv) the incidental restriction on the First Amendment is not greater than necessary to further that interest. The law punishing destruction of a draft card is constitutional on its face and as applied to this case. Based on the rule stated above, the Government has the power to raise and support armies. The draft card serves the important governmental interest of notifying and maintaining communication with those registered for the draft. That interest is not related to free expression, and the law is narrowly drawn to protect the government's interest in easily administering a system to raise an army. O'Brien's conviction is for willful frustration of that non-speech-related governmental interest. S - United States v. O'Brien is significant because it discusses a lower burden of proof when the First Amendment comes in conflict with a non-speech related government regulation. Ironically, the O'Brien case did not curtail the burning of draft cards, as it became a popular form of protest during the Vietnam War. Later, however, in Texas v. Johnson, in 1989, the Court found that the First Amendment protects the burning of an American flag.
Cohen v. California (1971)
-Cohen wore a jacket in L.A. courthouse that said "f*ck the draft" -Arrested for disturbing the peace -Supreme court overturned the conviction ruling that political expression is protected by 1st amendment. The Court pointed out that Cohen's conviction was not based on any form of conduct and was entirely based upon the offensiveness of his speech. When considering precedent, this specific case does not fall into a category of recognized unprotected speech like fighting words or obscenity. The state argues that California law rightfully banned speech, since Cohen's distasteful mode of expression was forced to be read by unsuspecting viewers. The state also claims that it has a significant interest in protecting sensitive citizens, such as women and children, from Cohen's crude manner of protest. The Court rejects these arguments. Presuming present unsuspecting viewers does not automatically justify restricting potentially offensive speech as a whole. Government regulate of discourse may only be used to prevent others from hearing it, if it is established that substantial privacy interests are invaded in an intolerable way. The Court pointed out that the readers of Cohen's jacket could easily look away to shield themselves from his message's offensiveness. Since the state of California did not show that supposed viewers who were powerless to avoid the speech did object to the speech, the state failed in presenting sufficient evidence in support of Cohen's breach of the peace conviction. The Court also held that there exists no compelling reason for California to criminalize the word **** specifically as opposed to any other possibly offensive words. The Court stated that in certain circumstances, the word could be protected speech under the First Amendment of the Constitution. In addition, a blanket prohibition on this word through any governmental regulation, risks suppression of a number of ideas. As a result, overturning Cohen's conviction for using this particular word in an expressive context must be done.
