J4000 Week 3
Cohen v. California (1971)
-Cohen wore a jacket in L.A. courthouse that said "f*ck the draft" -Arrested for disturbing the peace / public indecency / exposing young impressionable minds -Supreme court overturned the conviction ruling that political expression is protected by 1st amendment. Cali state law.
R.A.V. v. St. Paul, Minnesota (1992)
-first case where USSC considered hate speech -city ordinance banned cross burning -a few white kids burned a cross on a black family's lawn and charged only under hate speech ordinance -court unanimously overturned hate speech ordinance but disagreed on legal rationale. -USSC said gov't may not punish those who "communicate messages of racial, gender or religious intolerance just because the ideas may be emotionally painful." ^^quizlet notes Prof notes: involves an ordinance that prohibited any use of symbols that could be used for discriminatory purposes (swastika, cross burning, etc). RAV stands for the name of a minor. The kid burned a cross in this city, and he violated the ordinance. He challenges this law and it goes up to the US Supreme Court and it rules in favor of R.A.V. and said that this law discriminated on the basis of viewpoint (even tho it is considered hainus and extreme - it is a view point). It was considered to be unconstitutional.
Lecture: Regulating Speech - The Basics
1st Am. only deals with speech. It distinguishes speech from conduct. (First Am. doesn't protect you punching someone in the face)
Strict Scrutiny
A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal It is the highest level constitutional review. Anytime someone challenges a law like this, the court will apply strict scrutiny to analyze the constitutionality of the law. "strict scrutiny is strict in theory, fatal in fact" - as soon as it is applied - game over for the gov't. With strict scrutiny, the court requires gov't to provide a compelling interest - an overwhelming important - significant
Knight v. Trump (2nd Cir. 2019) - NY
A new frontier? the question: whether a public officials social media account should be considered a public forum ?? If the function of the acct. is for official purposes, then it should be open to everyone to both see and communicate/interact with - and therefore should be considered a public forum (so Trump can't block Knight or anyone technically) Knight foundation sued saying that being blocked violated their rights and the Trump legal team argued that this is a private account bc he's been operating for a long time and its him speaking as a private citizen but the court disagreed. Trump makes policy proclamations w his act and therefore it functions as an official vehicle for official communications from the WH and therefore if someone is blocked, they would be deferred of that channel. however if there were threats or extreme harassing then a person could be blocked by Trump.
What the First Amendment does - and doesn't - do The First Amendment protects freedom of speech, press, petition, assembly and religion. There are two reasons why mask mandates don't violate the First Amendment. First, a mask doesn't keep you from expressing yourself. At most, it limits where and how you can speak. Constitutional law scholars and judges call these "time, place, and manner" restrictions. If they do not discriminate on the basis of the content of the speech, such restrictions do not violate the First Amendment. An example of a valid time, place and manner restriction would be a law that limits political campaigning within a certain distance of a voting booth. Additionally, the First Amendment, like all liberties ensured by the Constitution, is not absolute.
All constitutional rights are subject to the goverment's authority to protect the health, safety and welfare of the community. This authority is called the "police power." The Supreme Court has long held that protecting public health is sufficient reason to institute measures that might otherwise violate the First Amendment or other provisions in the Bill of Rights. In 1944, in the case of Prince v. Massachusetts, for example, the Supreme Court upheld a law that prohibited parents from using their children to distribute religious pamphlets on public streets. A man protesting a mask mandate in Florida says he's standing up for "the rights of people to make their own medical decisions."
Under intermediate scrutiny, applied to such issues as content-neutral regulation of speech — the court requires that the government show that the regulation serves an "important" interest. Strict scrutiny, however, requires the government to demonstrate that it is using the most narrowly tailored, or least restrictive, means to achieve an interest that is compelling.
Although not explicitly defined, "compelling" is obviously intended to be a higher interest than "legitimate" or "important"; some have described it as "necessary" or "crucial," meaning more than an exercise of discretion or preference. Regulation vital to the protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity, and respect for fundamental rights are examples of compelling governmental interests.
A government regulation that impairs First Amendment rights must meet a higher standard of need, called a "compelling government interest," to be constitutional. Regulation vital to the protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity are examples of compelling governmental interests.
But courts have decided other regulations go too far. For example, in Wisconsin v. Yoder (1972), the Court allowed Amish parents to withdraw their children from school at age fourteen, despite a state law requiring attendance until sixteen, because the additional two years of education was not a compelling enough interest to burden the practice of religion
Clark v. CCNV (1984)
CCNV = community for creative non-violence This involved a group (CCNV) who wanted to protest gov't policy regarding the homeless. They camped out on the national mall over night and their creative idea here is to create a scene of what homeless ppl might live in. They're showcasing the plight of the homeless. It was a powerful way to transmit their messages. However, there's a regulation saying you are not allowed to camp overnight on mall property. So Clark is head of the national park service and CCNV sued him as a gov't official. CCNV fine for violating this federal national parks ordinance that they can't camp and case goes to US Supreme Court. CCNV loses. The court rules in favor of the national park service - Clark. They ruled that the ordinance is content neutral. - it doesn't matter why you're camping - no one can camp on the national mall and the court understood and gave sympathy to them and they appreciated the creativity BUT this is content neutral and the important state interest here is to keep the mall looking beautiful. BUT if they can prevent mishaps, then they have a compelling interest to maintain the beauty of the mall. No relation to speech and regulation - not to prevent CCNV it's just narrowly tailored.
Hague v. CIO (1939)
CIO = committee for industrial organization (labor union) ban on political meetings violates freedom of assembly "Wherever the title of streets and parks may rest, they have IMMEMORIALLY been held in trust for the use of the public and, TIME OUT OF MIND, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, FROM ANCIENT TIMES, been a part of the privileges, immunities, rights, and liberties of citizens." This had to do w/ a NJ law that prohibited strikes or labor meetings in a way that would disrupt the public order. The CIO challenged the law and Justice Roberts in this case, wrote the phrase above ^^ ( in quotes ). DICTA - latin root word to "say" A justice "said" this phrase in a case that has nothing to do w the facts of the case itself or applying a law to the facts of the case. Roberts was an example of applying the common law - dealing mainly w experience. Issue had to do w the law that forbade groups from organizing in streets or parks that would disrupt shit. Roberts kind of came up w the concept of public forum, but Harry Kalven gave us the term (he coined the term).
U.S. v. O'Brien (1968)
Draft cards burning was not a protected form of speech, destroying government property is a felony, illegal at all times. not an acceptable form of protest. O'Brien burned his draft card during the Vietnam war. At a protest he held up his draft card (which is issued by the gov't) and burnt it. A FEDERAL law prohibits the burning of the draft card. He was arrested and challenged the law using USC section 1983 (same code). The gov't won!! Why? Bc the court ruled that the law in question was content neutral.
The right to liberty Some anti-maskers object that masks violate the right to liberty. The right to liberty, including the right to make choices about one's health and body, is essentially a constitutional principle of individual autonomy, neatly summarized as "My body, my choice." The 1905 case of Jacobsen v. Massachusetts shows why mask mandates don't violate any constitutional right to privacy or health or bodily integrity. In that case, the Supreme Court upheld a smallpox vaccination requirement in Cambridge, Massachusetts. The court said that the vaccination requirement did not violate Jacobsen's right to liberty or "the inherent right of every freeman to care for his own body and health in such way as to him seems best." As the court wrote, "There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members." In a 1995 New York case, a state court held that an individual with active tuberculosis could be forcibly detained in a hospital for appropriate medical treatment.
Even if you assume that mask mandates infringe upon what the Supreme Court calls "fundamental rights," or rights that the court has called the "very essence of a scheme of ordered liberty," it has consistently ruled states can act if the restrictions advance a compelling state interest and do so in the least restrictive manner. Rights are conditional As the Jacobsen ruling and the doctrine of time, place and manner make clear, the protection of all constitutional liberties rides upon certain necessary - but rarely examined - assumptions about communal and public life. One is that constitutional rights - whether to liberty, speech, assembly, freedom of movement or autonomy - are held on several conditions. The most basic and important of these conditions is that our exercise of rights must not endanger others (and in so doing violate their rights) or the public welfare. This is simply another version of the police power doctrine. Unfortunately, a global pandemic in which a serious and deadly communicable disease can be transmitted by asymptomatic carriers upsets that background and justifies a wide range of reasonable restrictions on our liberties. Believing otherwise makes the Constitution a suicide pact - and not just metaphorically.
NEW READING:
First Amendment Encyclopedia: Compelling State Interest
Texas v. Johnson (1984)
Flag burning is *symbolic speech* and is protected by the 1st amendment. Hint: The case involves Texas, but it's not the one you think! ;-) Gregory Johnson - burnt it in 1980 in Dallas outside of the Republican National Convention (when they met to nominate Reagan). He was a protestor and expressed his disagreement by burning the flag. This involves a Texas State Law prohibiting the burning of an American Flag - it criminalizes the burning of it. After Johnson was caught, he was arrested and charged w/ violating state law. So, he challenged this law and filed suit against the state using 42 USC section 1983. He uses this instrument of the civil rights act and argued that the gov't violated his rights. The case goes up to the US Supreme Court - it takes 4 years. It was 5-4 and the court overturned his conviction and said burning the flag is protected speech - Texas law /statute at issue here was unconstitutional and violated the 1st Amendment. The court was saying the Texas law was participating in "view point discrimination" - so Texas was discriminating against a certain view point.
It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The Court has held, however, that to sustain a denial of a statute denying minors access to sexually explicit material "requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors." In certain other contexts, the Court has relied on "common sense" rather than requiring the government to demonstrate that a recited harm was real and not merely conjectural.
For example, it held that a rule prohibiting high school coaches from recruiting middle school athletes did not violate the First Amendment, finding that it needed "no empirical data to credit [the] common-sense conclusion that hard-sell [speech] tactics directed at middle school students could lead to exploitation . . . ." On the use of common sense in free speech cases, Justice Souter wrote: "It is not that common sense is always illegitimate in First Amendment demonstration. The need for independent proof varies with the point that has to be established . . . . But we must be careful about substituting common assumptions for evidence when the evidence is as readily available as public statistics and municipal property evaluations, lest we find out when the evidence is gathered that the assumptions are highly debatable."
en banc
French for "on the bench." the term used when the full panel of judges on the appellate court hears a case if a panel of 3 judges gives a decision, whoever loses can appeal and have the judges (all 13) hear their case (en banc) it is a re-hearing by getting new judges at the circuit level. the other option is to go to the Supreme Court.
Non-public Forums (Definition)
Government properties that the government constitutionally can and does close to speech. Still a public place (airports, lecture halls, prisons, etc.) paid for by public $, but are not public forums. Gov't has much more leeway in these places to restrict speech.
Terry Jones
He was a pastor in Gainesville, FL. & on the anniversary of 9/11 he created an annual "burn a Koran" day in 2010. YouTube is pretty high rn and everyone is reacting violently to his actions. City of Gainesville had an ordinance called "restrictive fire ordinance" and it prohibited the burning of any type of book bc the glue used in the binding contains (generally) hazardous chemicals and if burned, the chemicals enter the air and can make ppl sick. If anyone is caught, they can be charged w violating this ordinance (resolves in a fine of some sort) - Jones got fined $271 for burning the book. this is a content neutral law - do not burn any books. it was an important state interest - "we want to protect our residents so they don't breathe in chemicals" - it is narrowly tailored and we are giving him ample opportunities to in other ways voice those negative feelings towards muslims beyond burning this book.
With public forums, the speaker(s) who is speaking in the forum can discriminate on the basis of view point but Gov't's cannot.
Hurley v. Irish-American GLB Group of Boston 1995 St. Patrick's day parade in Boston - a group organized by Hurley got a permit to be able to parade in Boston and had use of the streets (use of public forum) and the Irish-American GLB group wanted to be a part of the parade. There argument was that in a public forum gov't cannot discriminate on the basis of viewpoint and can't control who marches. The court disagreed and sided with Hurley - they said that if the group wanted to have their own march for their own parade - that's fine. BUT the gov't and city of Boston had already given the rights to march over to the private entity that was coordinating this march. TO require them to add in a group that they didn't want would be COMPELLED SPEECH. allowing this group to march in the parade would be compelling the current permit holders to speak a message they did not wish to speak.
Both in traditional and designated public forum strict scrutiny applies.
If the gov't wishes to restrict speech in a public forum, strict scrutiny must apply. So, there must be no discrimination on the basis of content or view point. However, time place and manner regulations apply
In the Court's forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums. In determining whether a government property should be classified as a designated public forum, the courts examine the government's "policy and practice" toward the property and whether the property is conducive to expressive activity, in order to discover the government's intent, as explained in Cornelius v. NAACP Legal Defense and Educational Fund (1985). In First Amendment cases, the free-speech claimant often argues that the government has discriminated against speech based on viewpoint in some type of public forum. The government sometimes will respond that the public forum doctrine is inapplicable, because the government has engaged in government speech. For example, the Supreme Court ruled in Walker v. Sons of Confederate Veterans(2015), that the state of Texas did not create a limited or designated public forum with its specialty license plate program. Instead, the specialty license plate program was a form of government speech.
In 2019, the 2nd and 4th Circuit Courts of Appeals ruled that government use of social media creates a designated public forum, and government officials can't engage in viewpoint discrimination by blocking comments. In a widely watched case, the 4th Circuit Court of Appeals in Knight First Amendment Institute v. Trump (2019), that President Trump violated the First Amendment by removing from the "interactive space" of his Twitter account several individuals who were very critical of him and his governmental policies. The appeals court agreed with a lower court that the interactive space associated with Trump's Twitter account "@realDonaldTrump" is a designated public forum and that blocking individuals because of their political expression constitutes viewpoint discrimination.
In response to Smith, Congress by statute demanded strict scrutiny and a showing of a compelling interest for infringements of free exercise. The Religious Freedom Restoration Act of 1993 (RFRA) reestablished a compelling interest requirement for bona fide free exercise claims against federal regulation, but the Court ruled in City of Boerne v. Flores (1997) that this attempt to reapply the compelling state interest test to states violated the Fourteenth Amendment. Many states have enacted their own RFRA requirements as a matter of state law.
In Buckley v. Valeo (1976) and McConnell v. Federal Election Commission (2003), the Court ruled that there is a compelling interest in reducing the appearance of political corruption sufficient to sustain extensive regulation of finance and expression in campaigns and elections, as long as content is not targeted and avenues for exercising political speech are not excessively restricted. This article was originally published in 2009. Ronald Steiner (Ph.D. Political Science, University of Minnesota; J.D., University of Southern California) is Professor and Director of Graduate Legal Education at the Fowler School of Law at Chapman University, where he teaches constitutional law and other topics in law and political science.
It is usually combined with the over-breadth doctrine, which focuses on the need for precision in drafting a statute that may affect First Amendment rights; an over-broad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck down as facially invalid, although in a non-First Amendment situation the Court would simply void its application to protected conduct. But, even in a First Amendment situation, the Court has written, "there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do now swallow the social benefits of declaring a law 'overbroad,' we have insisted that a law's application to protected speech be 'substantial,' not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications, before applying the 'strong medicine' of overbreadth invalidation. . . . Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating)." Out of a concern that is closely related to that behind the overbreadth doctrine, the Court has insisted that when the government seeks to carry out a permissible goal and it has available a variety of effective means to do so, "If the First Amendment means anything, it means that regulating speech must be a last—not first— resort." Thus, the Court applies "strict scrutiny" to content-based regulations of fully protected speech; this means that it requires that such regulations "promote a compelling interest" and use "the least restrictive means to further the articulated interest." With respect to most speech restrictions to which the Court does not apply strict scrutiny, the Court applies intermediate scrutiny; i.e., scrutiny that is "midway between the 'strict scrutiny' demanded for content-based regulation of speech and the 'rational basis' standard that is applied—under the Equal Protection Clause—to government regulation of nonspeech activities."
Intermediate scrutiny requires that the governmental interest be "significant" or "substantial" or "important" (but not necessarily "compelling"), and it requires that the restriction be narrowly tailored (but not necessarily the least restrictive means to advance the governmental interest). Speech restrictions to which the Court does not apply strict scrutiny include those that are not content-based (time, place, or manner restrictions; incidental restrictions) and those that restrict categories of speech to which the Court accords less than full First Amendment protection (campaign contributions; commercial speech). Note that restrictions on expression may be content-based, but will not receive strict scrutiny if they "are justified without reference to the content of the regulated speech." Examples are bans on nude dancing, and zoning restrictions on pornographic theaters or bookstores, both of which, although content-based, receive intermediate scrutiny on the ground that they are "aimed at combating crime and other negative secondary effects," and not at the content of speech. The Court uses tests closely related to one another in free speech cases in which it applies intermediate scrutiny. It has indicated that the test for determining the constitutionality of an incidental restriction on speech "in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions," and that "the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context." In addition, the Supreme Court generally requires—even when applying less than strict scrutiny—that, "[w]hen the government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply 'posit the existence of the disease sought to be cured.' . . .
A no signs period law.... what would that be considered? Absolutely out-ruling all yard signs. Diff scenario: Political signs must be smaller than 3 ft tall - viewpoint discrimination - you're not suppressing speech here - or distinguishing btwn who can be on the sign - but it distinguishes it from other signs. This particular restriction is what's known as restrictions on Time, Place and Manner.
It would be prohibiting more speech than necessary.
Traditional Public Forum
Lands designed for public use and historically used for public gathering, discussion and association (e.g., public streets, sidewalks and parks). Free speech is protected in these areas. ^ quizlet notes Prof. notes: -Place that the gov't pays for w tax payer dollars - open place - its conducive to expressive activities
Time, Place, and Manner
Limits that government can impose on the occasion, location, and type of individual expression in some circumstances. Restriction on the place and manner of the speech. Courts have generally been in agreement that restrictions on the time, place and manner are okay and will survive constitutional review. (having a loud sound truck blaring a message at 2am loudly thru a quiet suburb (time - 2am, manner - blaring it at loud levels, place - quiet suburb) - It's saying that with these particular times places and manners, it cannot be allowed.
The Constitution Doesn't Have a Problem with Mask Mandates, THE CONVERSATION NEW READING:
Many public health professionals and politicians are urging or requiring citizens to wear face masks to help slow the spread of the COVID-19 virus. Some Americans have refused, wrongly claiming mask decrees violate the Constitution. An internet search turns up dozens of examples. "Costco Karen," for instance, staged a sit-in in a Costco entrance in Hillsboro, Oregon after she refused to wear a mask, yelling "I am an American ... I have rights." A group called Health Freedom Idaho organized a protest against a Boise, Idaho, mask mandate. One protester said, "I'm afraid where this country is headed if we just all roll over and abide by control that goes against our constitutional rights." As one protester said, "The coronavirus doesn't override the Constitution." Speaking as a constitutional law scholar, these objections are nonsense.
Private Property
Marsh v. Alabama (1946) -city is big in shipping and ship building is a huge industry here. The company that built ships created a town to take care of there workers w its own gov't, services (heat, water, etc) but it would be run by the company not the state. a group of workers sought to protest working conditions at the ship building plant and they marked - they were told that it was a company town not a public place and you're not allowed to use this expression here. so the protesters / picketers sued the state of AL arguing that this town function was the functional equivalent to any other municipality and is no diff from any other town other than the fact that it is privately owned. the US Supreme C. agreed and ruled in favor of the protestors. If Pruneyard Shopping Ctr. v. Robins (1980) US Supreme Court sided with Robins (the protestors) but the law they used / applied was the Cali state constitution not the first Amendment. It said that they had these rights BUT only generous and applies to this narrow case in CA. It was only made possible bc of CA state law.
Content Based Discrimination
Must meet strict scrutiny. Two ways to find a law is content-based: 1) subject matter restriction (application of the law depends on the topic of the message) e.g. judges can't have a constraint as to what they can and cannot talk about during their campaigns 2) view point restriction (application of the law depends on the ideology of the speech) e.g. city allows pro war demonstrations but not anti war demonstrations ^^quizlet notes Prof. notes: has to do w regulation focused on a category of views (not a specific viewpoint). Yard sign example: a content law would consist of no political signs at all. - content based and this leads to strict scrutiny as well if someone challenged this (if it is a valid interest). Viewpoint discrimination would be banning only third party candidates.
The objections It is not always clear why anti-maskers think government orders requiring face coverings in public spaces or those put in place by private businesses violate their constitutional rights, much less what they think those rights are. But most of the mistaken objections fall into two categories: Mandatory masks violate the First Amendment right to speech, assembly, and especially association and mandatory masks violate a person's constitutional right to liberty and to make decisions about their own health and bodily integrity. They're not mutually exclusive claims: A lawsuit filed by four Florida residents against Palm Beach County, for example, argued that mask mandates "interfere with ... personal liberty and constitutional rights," such as freedom of speech, right to privacy, due process, and the "constitutionally protected right to enjoy and defend life and liberty." The lawsuit asked the court to issue a permanent injunction against the county's mask mandate.
On July 27, the Court declined to issue an injunction against the mask mandate. Citing Jacobsen v. Massachusetts, the Court found that "no constitutional right is infringed by the Mask Ordinance's mandate ... and that the requirement to swear such a covering has a clear rational basis based on the protection of public health." More to the point, the Court continued, "constitutional rights and the ideals of limited government do not ... allow (citizens) to wholly shirk their social obligation to their fellow Americans or to society as a whole.... After all, we do not have a constitutional right to infect others." Responding to a reporter who asked why President Donald Trump appeared unconcerned about the absence of masks and social distancing at a campaign rally in Tulsa, Vice President Mike Pence said: "I want to remind you again freedom of speech and the right to peaceably assemble is in the Constitution of the U.S. Even in a health crisis, the American people don't forfeit our constitutional rights."
Government scrutiny has different levels The levels of scrutiny determine how courts prioritize competing interests of individual and governmental claimants.
Prior to the mid-twentieth century, courts gave great deference to acts passed or issued by the legislative and executive branches.
Regulation aimed at First Amendment rights must be justified at a higher level In Widmar v. Vincent (1981) and Locke v. Davey (2004) The Court held that a compelling interest exists in complying with constitutional obligations, such as not violating the establishment clause.
So, for example, any attempt to regulate expression based on its content will require a showing of a compelling governmental interest, particularly where the speech occurs in a public forum or on public property traditionally available for expressive and associative activities.
Examples of cases involving free exercise of religion In the context of the free exercise of religion, the Court ruled in Sherbert v. Verner (1963) that legitimate concerns about administrative difficulties, such as uncovering fraudulent unemployment claims, are insufficient to limit free exercise rights. In Wisconsin v. Yoder (1972), the Court allowed Amish parents to withdraw their children from school at age fourteen, despite a state law requiring attendance until sixteen, because the additional two years of education was not a compelling enough interest to burden the practice of religion. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), however, the Court held that a law of general effect — that is, one that does not reflect discriminatory intent against a particular religion — is not subject to strict scrutiny, even if it burdens a religious practice.
The Religious Freedom Restoration Act of 1993 (RFRA) reestablished a compelling government interest requirement for bona fide free exercise claims against federal regulation, but the Court ruled in City of Boerne v. Flores (1997) that this attempt to reapply the compelling state interest test to states violated the Fourteenth Amendment. However, many states have enacted their own RFRA requirements as a matter of state law.Jackson Blanchard, 18, of Indianapolis, leads the crowd in a chant during a protest against the Indiana Religious Freedom Restoration Act, in Indianapolis in 2015.
Roberts originated the public forum doctrine Most scholars trace the lineage of the public forum doctrine to Justice Owen J. Roberts's opinion in Hague v. Committee for Industrial Organization (1939), in which he wrote: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens."
The Supreme Court established three different types of public forums in Perry Education Association v. Perry Local Educators' Association (1983): traditional, limited and nonpublic. In the Perry case, a union argued that an Indiana school district was giving preferential treatment to a rival union by granting it exclusive rights to use the district's mail system. The Supreme Court ruled that the government mail system constituted a nonpublic forum, which allowed the school administration to have reasonable regulations on speech that did not discriminate based on viewpoint. Because differential access was "based upon the status of the respective unions," there was no viewpoint discrimination.
First Amendment scholar Harry Kalven Jr. wrote of the concept in a law review article in 1965 titled "The Concept of the Public Forum: Cox v. Louisiana." The term public forum, however, did not appear in First Amendment cases until the 1970s, and public forum doctrine did not appear until the 1980s.
The Supreme Court used the term public forum frequently in the 1970s. In Southeastern Promotions, Ltd. v. Conrad (1975), the Court ruled that city officials of Chattanooga, Tennessee, violated the First Amendment by prohibiting the production of the rock musical Hair in public facilities. The Court wrote that the city-owned theaters were "public forums designed for and dedicated to expressive activities." In Greer v. Spock (1976), the Court rejected a First Amendment challenge to speech restrictions on a military base, writing "it is . . . the business of a military installation . . . to train soldiers, not to provide a public forum."
COMPELLED SPEECH
The act of forcing someone to participate, either directly or indirectly, in speech to which they object; generally not allowed by the Supreme Court.
The public forum doctrine is less than clear. Some lower courts have identified a difference between designated and limited public forums. For example, the Ninth U.S. Circuit Court of Appeals has explained in Faith Center Church Evangelistic Ministries v. Glover (2007): "A limited public forum is a sub-category of the designated public forum, where the government opens a nonpublic forum but reserves access to it for only certain groups or categories of speech." Commentators have criticized the public forum doctrine and its application by the courts. For example, law professors John Nowak and Dan Farber wrote in a 1984 article: "Classification of public places as various types of forums has only confused judicial opinions by diverting attention from the real first amendment issues involved in the cases."
The doctrine nonetheless remains a staple in modern First Amendment jurisprudence. More recently, First Amendment scholar Aaron Caplan has likened the public forum doctrine to "kudzu," explaining that "there is not even agreement as to how many levels of forum exist within the public forum doctrine." (Caplan 654). Whatever its shortcomings, the public forum doctrine has a pervasive presence in First Amendment free-speech law. In the 2016-2017 term, the U.S. Supreme Court mentioned the concept of public forum in both Matal v. Tam (2017) and Packingham v. North Carolina (2017).
First Amendment Encyclopedia: Public Forums
The public forum doctrine is an analytical tool used in First Amendment jurisprudence to determine the constitutionality of speech restrictions implemented on government property. Courts employ this doctrine to decide whether groups should have access to engage in expressive activities on such property.
White explained three categories of government property In the 1980s, the Court articulated the contours of the public forum doctrine in Perry Education Association v. Perry Local Educators' Association (1983). In Perry, Justice Byron R. White explained that there were three categories of government property for purposes of access for expressive activities. --Traditional, or quintessential, public forums; --limited, or designated, public forums; --and nonpublic forums. In the first, "quintessential public forums, the government may not prohibit all communicative activity," White wrote, explaining that content-based restrictions on speech were highly suspect.
The second category was designated, or limited, public forums. "Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum," White explained. "Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest." The third category was nonpublic forums. "In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view," White explained.
In time, the patent unworkability of this pretense led justices, including Harlan Fiske Stone, to articulate an overt double (and later triple) standard for constitutional reviews: Most governmental regulation, including most economic regulation, would be presumed constitutional, but — as Stone explained in his famous footnote fourin United States v. Carolene Products Company (1944) — regulation aimed at fundamental rights, the operation of the political process, and disadvantaged minorities must be viewed with more scrutiny and subjected to stricter review.
Under rational basis review, the most common and lowest level of scrutiny, a court asks only whether a governmental regulation might serve some "legitimate" governmental interest.
Modern Tests and Standards: Vagueness, Over-breadth, Strict Scrutiny, Intermediate Scrutiny, and Effectiveness of Speech Restrictions READING ~
Vagueness is a due process vice that can be brought into play with regard to any criminal and many civil statutes, but it has a special significance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one's speech may deter constitutionally protected speech as well as constitutionally unprotected speech. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths, obscenity and indecency, and restrictions on public demonstrations.
Grey Areas where the line is blurred
What kind of legal standard does a court apply?
proper way to dispose of a flag is to
burn it
Harry Kalven
coined the term "public forum" "The Concept of the Public Forum" (1965) "In an open democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a PUBLIC FORUM that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom." it's an eloquent phrase ^ the term is relatively new, the notion of it is ancient. the court in 1972, opened up / acknowledged the notion of this concept (public forum) it opened a new whole series of questions ab when exactly is something a public forum?
What about public universities?
it's messier. they are public, in that they are paid for by land grants and tax dollars (and tuition dollars of course). they are made up of dozens of diff types of facilities -streets that are public managed by como, - part of the community, -they have peace park which is a municipal park and various quadrangles - -they are more like non public forums, you also have lecture halls (non public forums) -stadiums are totally private U of Minnesota - allowed Ben Shapiro to speak at the university in an auditorium called Wiley Hall - on the west side of the MS river (a highly trafficked area) BUT were concerned about riots so they moved him to a smaller venue. Shapiro's foundation sued Minnesota bc of view point discrimination bc Min. was worried ab whether his view point would trigger a counter demonstration. (but university has a responsibility to protect and maintain order and safety on campus and it has limited resources to be able to maintain security for the event). The case is still being litigated today -
narrowly tailored
legal principle that a law be written to specifically fulfill only its intended goals ^ quizlet notes means you cannot be restricting more speech than is necessary. if you have a law saying no political law signs, that is banning A LOT of speech and therefore it is too restrictive and the law would fail.
Designated Public Forum
places created by the government to be used for expressive activities (gov't has set aside or designated to explicitly open it up as a public forum) -public venue -amphitheater 1 key factor here: what the gov't gives you, it can also take away whenever
penological
relating to the criminal corrections process
DICTA
statements made in a judicial opinion that are not essential to the decision of the case DICTA can also b used to spell out possible doctrine or possible new ways of understanding the law
Content neutral
the government may not regulate assemblies on the basis on what might be said 1. the law / regulation in question is not trying to ban / prohibit anti war speech but rather designed to protect the integrity of gov't property - so he was destroying gov't property and 2- the gov't has an important interest in drafting / fueling an army. It was decided that the law applies intermediate scrutiny (level below strict) or the O'Brien test. (court looks for an important interest - slightly less significant than strict scrutiny. Gov't must show that there is no connection btwn it's regulation and the suppression of speech. IT did not pass this law to prohibit anti war speech but to protect gov't property and to further its goals to fuel the army. 3. It must be narrowly tailored and must not prohibit no more speech than necessary. 4. it must allow ample alternative channels (O'Brien can't hold up and burn his draft card but he can march in protest or hold up signs)
A compelling state (or governmental) interest is an element of...
the strict scrutiny test by which courts exercise judicial review of legislative and executive branch enactments that affect constitutional rights, such as those found in the First Amendment. An interest is compelling when it is essential or necessary rather than a matter of choice, preference, or discretion.
The vagueness doctrine generally requires that a statute be precise enough to give fair warning to actors that contemplated conduct is criminal, and....
to provide adequate standards to enforcement agencies, factfinders, and reviewing courts.
