freedom of speech: source
1A: “Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peacably to assemble, and to petition the government for a redress of grievances”
1A speech: scope
feds + state (14 DPC)
but do need state action, like always
1A :generla principle
1A stops gvt from distorting the marketplace of ideas, esp re pol speech
1A: content based restrictions: rule
content-based discrim by gvt –> SS! (usu –> unconst)
1A: content based restriction: exs
1) censorship
2) viewpoint discrim
1A: content base: cases held this speech ALLOWED
pol speech at parks
flag burning
can’t prohibit critical foreign gvt speech near embassies
1A: content based restrictions: pass strict scrutiny
some can
ex: ban on child porn even if fake
content-based restrictions: EXCEPTIONS: result
not subject to SS (often different test)
unprotected or low-value speech: mnemonic
HAFWOUD
unprotected or low-value speech: list
HA: hostile audience FW: fighting words O: obscenity U: unlawful advocacy D: defamation
content-based restrictions: EXCEPTIONS:
1) unprotected or low value speech
2) gvt as speaker
3) content-neutral conduct regulation
4) content-neutral place, time, manner regulation
unprotected/low value: rule
rational basis!
unprotected: unlawful advocacy: def
speech inciting violence or other unlawful action
unprotected: unlawful advocacy: test
1) subjective (intent of speaker): imminent, unlawful action +
2) objective: likely in obj fact to produce imminent unlawful action
unprotected: fighting words: def
words likely to incite an ordinary citizen to acts of immediate physical retaliation aren’t protected
unprotected: fighting words: reqs
- -direct personal insult (more than annoying or offensive)
- -BUT statute facially invalid if conduct proscribed is vague or overbroad
- -BUT statute facially invalid if designed to punish certain viewpoints
unprotected: hostile audience: def/rule
imminent violent rp against speaker by crowd
BUT, police msut first make reasonable effort to control crowd (before intefering w speaker)
unprotected: obscene speech: test
(all) (work as a whole)
1) prurient interests–based on local com standards
2) statute specifically defines sexual conent + patently offensive to local com standard
3) lacks serious literary, artistic, pol, or sci value (SLAPS)
unprotected: defamation: rule
depends on:
1) P is pub official or pub figure or neither?
2) st involves matter of pub concern?
unprotected: defamation: P is private person, subject is private concern
(speech not protected by 1A so any state defamation law ok)
strict liability ok
(SL: state saying falsity + damages is enough, w/o MR)
unprotected: defamation: P is private person, subject is public concern
MR: negligence re truth or falsity of statement (SL not permitted)
unprotected: defamation: P is public official or figure (regardless of subject)
P must prove actual malice (knows false or reckless disregard of truth/falsity
unprotected: defamation: private person + public concern and false-light invasion of privacy (different tort)
P must prove actual malice
unprotected: defamation: false-light invasion of privacy (different tort)
not liable if:
1) truthful info obtained from public record
OR
2) newsworthy + true
low-value speech: aka
quasi-protected
low-value speech: kinds
1) commercial
2) sexual or indecent
commercial speech: def
speech promoting commercial transaction
commercial speech: test
1) no 1Am protection if false or advertising unlawful activity
otherwise, this test (like IS):
1) substantial gvt interest
2) regulation directly advances gvt interest
3) reg not greater than nec to serve purpose
commercial speech: examples of what state CAN”T ban
- -ads w drug prices
- -attys advertising
commercial speech: ok for state to ban
- -L in-person solicitaiton
- -commercial billboards
sexual/indecent speech: rule
speech fully protected but ok regulate on basis of secondary effects
- -reg must serve substantial gvt interest
- -must leave open reasonable alternative channels of com
gvt as speaker: rule
gvt can say what it wants, no 1A problem
comes up re whether speaker speaking on his own, or part of gvt
conduct regulation: test
1) if law is regulating conduct + just incidental burden on speech, then ok if:
2) important gvt interests unrelated to content
3) no greater restriction than nec to serve interest
time/place/manner restrictions: test
gvt can place reasonable restrictions on time/place/manner of speech in public areas.
Reg must:
1) be content-neutral (subject matter + viewpoint)
2) narrowly tailored to important gvt interest
3) leave open alternative channels
time/place/manner: rule re permits
states can require large gatherings to get permit for use of public property
AS LONG AS: permit rules are specific, content-neutral grounds to approve or deny
time/place/manner: exs: state CAN”T
- -require pay for actual expense of police protection
- -completely ban door-to-door solicitation
- -require religious or pol canvassers to register _ get a permit
time/place/manner: exs: state CAN restrict:
- -volume + hours of amplifiers–ok require door to door solicitors to ID selves to authorities (crime prevention)
- -ok post office stops certain person from mailing you things at your req
- -ok buffer zones
time/place/manner: protests on sidewalk in front of private home: rule
ok restrict if other areas of neighborhood are available and restriction is content-neutral
time/place/manner: NOT PUBLIC PLACES
if gvt property but not public place (mil base, jail, gvt workplace, etc): ok regulate, if
1) viewpoint neutral (note: content restrictions ok)
2) rationally related to legit gvt interest
time/place/manner: not public place: exs of what it’s ok for gvt to do
- -prohibit protests at jail
- -close mil base to pol speech
- -regulate speech in gvt workplace
- -sell space on busses for commerical advs but not pol
- -public tv station can exclude candidate from debate based on neutral criteria
time/place/manner: convert to public space
public school can’t deny religious groups access (bc once make school public space, can’t make content based restrictions)
public employment / pol opinion: ok deny job for pol beliefs if:
1) high level policy-making job, OR
2) this test:
a) active member of subversive org +
b) w knowledge of illegal goals +
c) intent to further illegal goals
public employment: oath reqs
ok require oath to:
1) support constitution
2) oppose illegal overthrow of gvt
only
public employees: ok fire or discipline for speech if
1) not a matter of public concern, or
2) yes public concern, but potentially disruptive
school children can be disciplined for speech if
potentially disruptive
prisoners’ speech rights can be restricte dif
rationally related to legit penological objective
prior restraint: def
blocking speech before uttered
prior restraint: gen rule
strong presumption against consitutional validity
prior restraint: exceptions
ok if:
1) classified military info
2) gvt ee pre-publication review (for ntl security)
pretrial publicity: test
(usu can't do pretrial gag order) factors: 1) nature + extent of publicity 2) availability of other measures to mitigate risks of pretrial publicity 3) likely effectiveness of the measures
pretrial publicity: potential other measures
1) voir dire
2) change venue
3) postpone trial
prior restraint: movie censorship
ok if:
1) narrow + reasonable standards
2) immediate injunction
3) BOP censor
4) prompt judicial hg
permit denials
1) if statute facially valid, must challenge in court (even if was applied unconstitutionally)
2) if statute is NOT facially valid, ok ignore if permit denied (or not even apply for one)
erroneous injunction
still must obey r appeal
problems w state regulations on speech1
1) overbroad
2) vague
overbroad restriction: def + result
state must restrict in narrow, specific way – not overly broad bc dnw chill protected speech
(exception to 3P standing)
result: can’t apply against ANYONE!
vagueness restriction: def + result
gvt regulations must be drawn w narrow specificity, not vauge
result: can’t apply against ANYONE!
freedom of press
no greater speech rights than member of public (still must testify at grand juries)
radio + tv gets LESS Protection (bc license from gvt): ex ok gvt ban offensive sexual content
tho cable tv: somewhat in btwn
freedom of press: cable tv:
content neutral regulations –> intermediate scrutiny
bar admission: communism
can’t deny admission for past membership in communist party
but can refuse bar membership if refuse to answer questions re communism
free speech: approach
1) protected at all?
2) content based restriction?
3) state action?
constitutional: gen approach
1) state action?
2) state or fed?
3) if fed, power to do it?
4) either way: right infringed?
