What does the First Amendment protect?
Freedom of expression (speech, press, assembly, & association)
Expressive conduct meant to convey a particular message (e.g. wearing black arm bands in protest)
When can the government regulate symbolic speech?
- Regulation furthers important gov. interest;
- Interest is unrelated to suppression of the message; and
- Impact on speech is no greater than necessary to achieve interest
Are restrictions on the following constitutional:
- Flag burning
- Public nudity
- Constitutional b/c interest in harmful effects
- Constitutional b/c interest in littering
- Constitutional if meant to threaten
Restriction based on the speech's subject matter; i.e. disagreement with the message it contains. Can be either content-based on its face or as applied.
⭐️ Subject to strict scrutiny ⭐️
What 5 types of speech can be regulated on the basis of content? (i.e. unprotected speech)
- Fighting words;
- Defamation; and
- Commercial speech
⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny
Applies neutrally to all content regardless of viewpoint or subject matter.
Ex. time, place, or manner restriction
⭐️ Subject to intermediate scrutiny
Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.
Distinguish traditional vs. designated public forum
Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums
Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums
3 requirements needed for a valid time, place, or manner restriction in a public forum
Leaves open ample, alternative channels of communication; and
Narrowly tailored to serve significant government interest (not compelling gov. interest)
Is there a right to picket a single residence?
When will a regulation on speech in a designated public forum be upheld?
When forum is open for speech and:
Regulates time, place, or manner (i.e. is content-neutral);
Is narrowly tailored to serve significant government interest; and
Leaves open ample, alternative channels of communication
(same as test for traditional public forum)
Public property that is not open to speech (e.g. schools, jails, airports)
When is a restriction on speech in a non-public forum valid?
Viewpoint neutral (**does not need to be content neutral); and
- Reasonably related to a legitimate government purpose
viewpoint neutral restriction
One that restricts entire categories of speech, but not viewpoints within a category
Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed
Blocks speech before it is expressed. Subject to strict scrutiny.
⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances
More info: Prior Restraint
When is a prior restraint on speech allowed?
Only allowed in extremely rare circumstances such as:
- During wartime or national security crisis to protect troops/citizens; or
- To prevent incitement of violence
Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).
Renders regulation void.
Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits
Can the government restrict inmates' free speech?
Yes, as long as the regulation is rationally related to a legitimate penalogical objective and an alternate way to express legitimate speech is available
⚠️ Note: This includes pretrial detainees, parolees, and those on probation
Does the press have more First Amendment rights than the general public?
No, same rights public at large
Is the media protected by the First Amendment for publishing a lawfully obtained private fact? (e.g. identity of a rape victim)
Yes, as long as story is matter of public concern (i.e. newsworthy)
Are gag orders constitutional?
Very rarely constitutional, unless they are the least restrictive means necessary to ensure D has a fair trial (usually alternatives such as better voir dire, venue change, or postponement are available)
Do the public and press have a right to attend trials?
Criminal trials: Yes, but can be overruled upon showing of overriding interest
Civil trials: Unclear
Can the government regulate broadcast TV?
Can only fine stations for airing "patently offensive and excretory speech"
Content-based regulations of cable TV are subject to what level of scrutiny?
Content-neutral regulations of cable TV are subject to what level of scrutiny?
(e.g. "must carry" provisions)
What is the 3-prong test to determine whether speech is obscene?
- Appeals to "prurient interests;” (community standard)
Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and
- Lacks serious artistic, literary, political, or scientific value as determined by national standards
⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.
Are zoning restrictions on adult entertainment establishments constitutional?
Yes, if zoning is to prevent adverse "secondary effects" caused by the business, such as increased neighborhood crime ("secondary effects doctrine")
Is profanity protected?
- Broadcast over public television; or
- In public schools
When can the government regulate speech that is incitement to violence?
Regulation must be narrowly tailored and only aimed at:
- Speech that promotes or directs imminent illegal action; and
- Creates a "clear and present danger" of such action
Substantially likely to provoke an immediate violent reaction (e.g. direct personal insult)
Are attempts to limit fighting words constitutional?
Limitations will almost always fail for being either overbroad, vague, or viewpoint-based and thus failing strict scrutiny
⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad
Speech whose primary goal is commerce (e.g. commercial or advertisement for a product or service)
What is the four-part test to determine whether regulation of commercial speech is constitutional?
Must satisfy Central Hudson Test:
- Speech is not false, misleading, or illegal;
- Regulation serves substantial government interest;
- Regulation directly advances interest; and
- Regulation is not more extensive than necessary to serve that interest
More info: Central Hudson Test
What is unprotected commercial speech?
Speech that is misleading, false, or unlawful and can be regulated freely by the government