First Amendment Incorporation and Application
> By their terms the five freedoms in the First Amendment apply only against the Federal Government.
"Congress" has been interpreted to apply to ALL BRANCHES.
> HOWEVER, the religion clauses, speech clause, and the press clause have been incorporated by operation of the due process clause of the XIV amendment against the states.
> The other two freedoms - assembly and right to petition for grievances have been merged into a right of association.
New York Times v. O'Sullivan (1964) RoL #1 RoL #2
RoL #1. Freedom of the press DOES INCLUDE privately paid editorial advertisements (non-commercial ads.) in a newspaper that are paid for by the private citizen. Falsity doesn't forfeit protection under 1st Am.
>We don't want to chill speech.
RoL #2. The first amendment REQUIRES that in order for a PUBLIC FIGURE to successfully recover in a libel action HE MUST PROVE that the published statement was MADE WITH ACTUAL MALICE.
Actual Malice = Proof that the publisher KNEW the statements were false, OR, that he printed the statement with RECKLESS DISREGARDS as to whether it was true or not.
> V. Difficult to prove.
Not putting burden on ∆ because people will be afraid to speak if they will be punished for falsehood.
Who is a public figure?
Using the test from Gertz, two categories of public figure:
(1) An individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.
(2) An individual who voluntarily injects himself, or is drawn into a particular controversy becomes a public figure for a limited range of issues.
Test isn't very helpful.
NY Times v. United States ("The Pentagon Papers Case") (1971) RoL Justices
Per Curiam decision: Prior restraints bear a HEAVY ASSUMPTION of unconstitutionality and the government bears a heavy burden of justifying their imposition. Burden not met.
> Black J. Absolutist when it comes to the first amendment. NO PRIOR RESTRAINTS EVER! There shouldn't even have been a preliminary restraint, the press clause was designed to expose government deception and that is exactly what this case is about.
> Brennan J.: More moderate. Government has not shown enough justification IN THIS CASE but perhaps in a future case they may be able to get a prior restrain (national security, troop transporter hypo.)
> Stewart J. and White J. More deferential to the government and the national security interest; HOWEVER, congress had not authorized by legislation the executive to seek this injunction.
The core question when dealing with speech
Ask, is the government regulation content based or content neutral?
a. IF it is CONTENT BASED, the regulation must generally pass STRICT scrutiny. It must be necessary to achieve a compelling government interest and the means employed must be narrowly tailored to achieving the interest.
b. If it is CONTENT NEUTRAL, it generally need only pass INTERMEDIATE SCRUTINY:
>Intermediate 1 for Symbolic Speech,
>Intermediate 2 for Time, Place and Manner
Prior Restraint - The Pentagon Papers (1971)
A substantive category of expression that is ruled OFF-LIMITS by the government and is restrained prior to its publication or dissemination. (Near v. Minnesota (1931) state law prohibiting publication of defamatory material struck down).
> HEAVY PRESUMPTION of unconstitutionality.
> Government bears a HEAVY BURDEN of justifying their imposition.
> Government CAN prosecute AFTER the publication.
>Strict scrutiny for prior restraints.
No national security exception.
Content Neutral Time, Place and Manner Regulations
The government MAY regulate the time, place and manner of speech in a PUBLIC forum, IF:
(1) The predominate purpose of the legislation IS NOT to target the content of the regulated speech (secondary effects),
(2)The regulation serves an important or substantial government interest, and
(3) The regulation leaves open, or "does not unreasonably limit" alternative channels of communication of the information.
Only applies to secondary effects that are not the result of the communication - e.g. not children hearing the words in the films
Renton v. Playtime Theatres (1986)
Content-neutral regulation - time, place, and manner
(1) Is the predominate purpose of the legislation to target the content of the speech?
- No, it is to combat the secondary effects (urban degradation) that the adult theaters will bring.
(2) Does the regulation serve an important or substantial government interest?
- Yes, maintaining the quality of urban life is an important governmental interest.
(3) Does the regulation leave open or "not unreasonably limit" alternative channels for communicating the message?
- Yes, the regulation prevents theatres from being within 1000ft of a residential zone, school or church, this leaves plenty of other places for the theatres to relocate.
Brennan Dissent: ordinance discriminates on content.
Symbolic Speech (expressive conduct) Framework from O'Brien
Conduct which communicates a message may be regulated by the government if it has:
(1) An important interest, unrelated to the suppression of the message, and
(2) If the impact on communication is no greater than necessary to achieve the government purpose.
Symbolic speech is almost always an as-applied challenge (law is sometimes constitutional but as applied in this instance, not consitutional vs. facial challenge - always unconstitutional)
U.S. v. O'Brien (1968)
Burning of the draft card = symbolic speech. Meant to communicate protest to the Vietnam War. Is the government statute prohibiting the burning of the card unconstitutional?
Apply the test for symbolic conduct:
(1) Does the government have an important interest, unrelated to the suppression of the message?
- Yes, preserving the draft card is important for many administrative and governmental functions and destroying them can create administrative problems for the person.
(2) Is the impact on the communication no greater than necessary to achieve the government interest?
- Yes, court see's no other way for the government to ensure the orderly administration of the draft system if people are burning the cards assigned to them.
Texas v. Johnson (1989)
Court says that flag burning is symbolic conduct, here it was used to communicate dissatisfaction with the government.
State brings charges against Johnstone, interests are:
(1) Preventing breaches of the breach, NOT implicated on these facts, and
(2) Preserving the flag for national identity.
Apply framework to see if the government can constitutionally regulate the speech:
(1) Does the government have an important interest, unrelated to the content of the speech?
- NO! Government says that you can burn flags to dispose of them respectfully but you can't burn them in this manner to show dissatisfaction because it is a venerated object. The interest is directly related to regulating viewpoint.
Because they fail the test the symbolic speech IS constitutional and the government cannot regulate it.
Fighting words - Chaplinsky (1942)
Ct held calling someone a racketeer and a damn fascist was not protected bc speech was intended to incite a fight.
Fighting words = face-to-face, imminent, calling someone out.
Exception to the right of free speech
> Words/Speech whose sole purpose is to incite physical confrontation.
>Flag burning does not fall under the fighting words doctrine because the object of the speech was not to start a fight, it was to convey political dissatisfaction with the government. THIS IS REMOVED from the DIRECT INTENT to call someone out to a fight.
Brown v. EMA (2011)
Video games ARE considered speech for purposes of the first amendment. Media used to convey ideas. State interest is connection between playing violent video games and violent behavior. (Alito thinks state interest is legitimate & exception reinforces parental decision making.)
> Court REFUSES to extend the obscenity doctrine to include violence. Obscenity refers only to sexual erotica that appeals to the PURIENT interest.
> NOTE. Underinclusiveness of the statute makes it seem like the government interest is not as compelling as they claim. Children can avoid the regulation by getting parental approval, if the interest was truly compelling they wouldn't have a bypass.
>Content based so STRICT scrutiny.
Ct doesn't add a new unprotected category. Scalia: content based restriction must have a long history/tradition. Unprecedented to make new category for minors considering long history of exposing children to violent material.
Snyder v. Phelps (2011)
A church protesting a military funeral on public land with offensive signs and in a peaceful manner is considered public speech that is protected by the first amendment.
Offensiveness (Cohen v. CA) is protected.
> Notice Alito's dissent. "There is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free fire zone in which otherwise actionable verbal attacks are shielded from liability under the guise of the first amendment."
Unprotected Content Based Speech
The following are NOT PROTECTED by the first amendment:
(1) Incitement to violent activity,
(2) True threats, (expression of intended violence)
(3) Fighting words, (very weak)
(4) Obscenity, (hardcore or appealing to prurient interest)
(5) Child pornography,
(7) Commercial Speech, (with exceptions)
(8) Speech by government employees in the performance of their duties.
Where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or groups of individuals
> Unprotected category of speech
A communication is "serious" when there is immediacy.
Why do we protect free speech?
(1) Democracy enhancing: Achieve better democratic self governance.
> People are sovereign, democracy depends on citizens being able to debate policies and to counter "bad speech"
(2) Individual expression. Identity forming; broad justification.
(3) Truth seeking. More speech is a vehicle to get to the truth.
>Get closer to the truth through trial and error.
Brandenburg v. Ohio (1969)
Regulation of speech which incites violence IS ONLY PERMISSABLE IF:
(1) It is "directed to" inciting or producing violence,
(2) It either incites or produces, or is likely to incite or produce, such violence, and
(3) The violence incited or produced IS IMMINENT.
Difficult test and a big burden for the gov't.
"Wouldn't it be a good thing" vs. "go out and do it."
RAV v. St Paul (1992)
The government cannot selectively punish unprotected speech i.e. it cannot punish some fighting words more severely than other fighting words.
> Law at issue was a content based statute that restricted the placing of symbols on private or public property that would cause offensive feelings to others.
Scalia accepts Minnesota's interpretation that it's a fighting words statute but under the statute, fighting words are fine as long as they don't address race, color, creed, religion, or gender. Can't distinguish types of unprotected speech.
NO HATE SPEECH EXCEPTION to the first amendment.
Broad aggressive applciation of no restrictions.
Cohen v. California (1971)
Cohen wore a jacket that said "Fuck the draft" in a court house and is punished for offensive conduct.
>Applied STRICT scrutiny to a law banning disturbing the peace by offensive conduct, held that as applied to Cohen
it was unconstitutional because it served to regulate his speech i.e. the words on his jacket. Language is not obscene because it's not erotic.
Offensiveness on its own will never be enough to warrant regulation by the State.
Unprotected content neutral regulations
Vagueness. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
Over-breadth. A law is over broad if it regulates substantially more speech that the constitution allows.
Symbolic speech - expressive conduct. Lower standard than speech itself, intermediate scrutiny.
Land that the government is constitutionally required to make available for speech:
- Sidewalks, - Parks, etc.
STRICT SCRUTINY applies to content based regulations in public forums.
Limited Public Forum
Land opened up by the government for speech (i.e. schools)
> Government may regulate the subject matter and the speakers allowed but may not discriminate based on the viewpoint of the speech.
Land that the governemnt MAY constitutionally close to certain types of speech:
> Military bases,
> Polling places
- MAYBE Government regulations MUST ONLY BE REASONABLE, but the government cannot discriminate on the viewpoint of the speech
MVA v. Mansky (2018) RoL Petitioner v. Respondent
8th Cir. Opinion held that polling places were NON PUBLIC FORUMS & reasonable to prohibit political clothing to ensure decorum & neutrality of polling place. Petitioner argues overbreadth.
>NOTE. Overbreadth affects standing, it allows someone to bring a claim on behalf of someone who is suffering from the injury. Since it allows people to bypass standing requirements, courts are usually reluctant to strike statutes down for overbreadth (strong medicine).
Respondents want the court to decide the forum question. If a polling place is a non-public forum they only need to satisfy a reasonableness requirement for any regulations.
6 Justices hold that a polling place IS A PUBLIC FORUM.
Statute prohibited giving out campaign materials as a means of soliciting votes within 1000ft of a polling station.
Speech proposing or urging a commercial transaction.
> Historically received no first amendment protection. Valentine v. Chrestensen. The streets are proper places for the exercise of the freedom of communicating information and disseminating opinion . . . we are equally clear that the constitution imposes no such restraint on government as respect purely commercial advertisement.
NY bans of ads upheld as not covered by 1st Am.
Virginia State Bd of Pharmacy - commercial speech can be regulated by state meaning false/misleading ads can be regulated.
Central Hudson (1980) Test
variety of intermediate scrutiny.
Answers must be all yes for gov't regulation to be constitutional
(1) Does the commercial speech concern lawful activity that is not misleading?
(2) Is the government interest substantial?
(3) Does the regulation directly advance the government interest?
(4) Is the regulation no more extensive than necessary to achieve the interest?
IF the answer to any of these is no = Unconstitutional.
Buckley v. Valeo (1976)
RoL #1. Government CAN limit political contributions (direct donations to candidates and political parties)
RoL #2. Government CANNOT limit independent expenditures (private people or corporations from paying to run ads)
- would be restriction on communicating ideas, political speech
Citizens United v. FEC (2010)
Under the first amendment, the government MAY NOT suppress political speech on the basis of the speakers corporate identity. Laws prohibiting corporations from making political expenditures are subject to strict scrutiny.
States have 3 interests:
1. antidistortion (Austin): money distorts political participation - overruled.
2. anticorruption: money corrupts speech that is required to make democracy work well - Ct holds that it's not appropriate to make distinctions based on identity of speaker.
3. shareholder protection: rejected bc statute is underinclusive (30-60 days)
Rationale. There's no difference between a wealthy corporation and a wealthy person. Struck down the Bi-Partisan Campaign Reform Act.
Stevens Dissent: corporations have no rights - individuals have rights.
Hard Money v. Soft Money
Hard Money. Money that is used to advocate a political stance and a particular political candidate.
Soft Money. Money used to pay for ads that educate on an issue but do not explicitly ask you to vote for a particular candidate.
- Congress restrict soft money. Challenged by McConnell (2003) in which Ct upheld that gov't can restrict soft money contributions.
Texas v. Johnson (1989) - Is Action Speech?
Whether expressive conduct was intended to convey a particularized message was present and whether the likelihood was great that the message would be understood by those who did it.
Ct holds it flag burning is speech.
Note Rehnquist Dissent: burning the flag is the equivalent of an inarticulate grunt. Action was not to convey an idea but to antagonize others. Not expressive conduct.
Content-Based vs. Content-Neutral Regulations
Content-based: gov't interest has to be unrelated to suppression of message & is more restrictive of what State can do (narrow tailoring)
Content-neutral: gov't interest is related to the content of the message but through secondary effect & is less restrictive (leave reasonable channels)
Incitement to Violence
Restriction based on dangerousness, lawbreaking.
Gov't can ban terrorism, insurrection, burning draft card, advocacy for terrorism.
Holmes: yelling fire in a crowded theater - clear and present danger.