Freedom of Speech CP

Constitutional Law

What level of scrutiny applies where the speech at issue is an article published in a newspaper?

Freedom of the press: Press has a right to publish matters of public concern; any restriction or punishment must be narrowly tailored to further a state interest of the highest order (essentially strict scrutiny)

Where speech occurs on govt. property, how should you analyze whether it is protected?

Speech on govt property: Public forum doctrine

• Special rules apply depending on whether the govt property is a public forum, designated public forum, or non-public forum

What is the difference between a content-based versus a content-neutral speech restriction?

• Content-based restrictions: Strict Scrutiny

  • Occurs where govt seeks to restrict speech b/c of its content (IE based on the subject matter or viewpoint)

• Content Neutral Restrictions: Intermediate Scrutiny

  • Occurs where a govt restriction applies to all expression regardless of the content or viewpoint

Protected speech receives what level of scrutiny?

Protected speech: where protected speech is at issue, the level of scrutiny depends on whether the speech restrictions is content-based

• Content-based restriction: Strict Scrutiny

• Content-neutral restriction: Intermediate scrutiny

How would you analyze the constitutionality of a public forum speech restriction? What test applies?

Test for public forum restrictions: To be upheld, the restriction must:

1. Be content-neutral

2. Be narrowly tailored to serve an important govt purpose

3. Leave open adequate, alternative channels of communication

What constitutes a public forum for 1st Amendment purposes?

Public forums are govt property that the govt is constitutionally required to make available for speech (EG Sidewalk, park).

If a govt. law that restricts speech in a limited public forum is viewpoint-based, can it still be constitutional?

Limited public forums:

• EG must be viewpoint neutral

If a govt law that restricts speech in a non-public forum is content based, can it still be constitutional?

Non-Public Forum:

• Content neutrality not required: Govt can allow speech on some subjects but not others, yet if it opens speech to a subject it cannot limit the speech to only one view.

Non-public forums are what types of property? How do you determine if govt can regulate speech in a non-public forum?

Nonpublic forum: govt property that can be closed to speech (EG military bases, airports)

• Test: govt can regulate speech if the regulation is:

  1. Reasonably related to some legitimate purpose; and

  2. Viewpoint neutral

What constitutes a limited public forum? What rules apply for speech restrictions?

Limited public forums: govt properties opened only for specific speech activity

• EG School gym used for a debate on a specific community issue

• Test: Can reserve for intended use. Same rules as nonpublic forum

  • EG must be viewpoint neutral and reasonably related to legitimate govt purpose

Can the govt. require permits or licenses for speech?

Permits/licensing: govt may require licenses or permits for speech only if it has a reasonable justification for doing so

• Requirements: for permit/license must be similar to a “rubber stamp” process and must provide review for denied permits/licenses

What must be shown for a prior restraint to be valid?

Requirements: To be valid, a prior restraint requires:

• Govt interest: there must be at least some significant govt interest justifying the restraint (IE a special societal harm)

• Procedural safeguards: For those whose speech is restrained

  • Safeguard must ensure restraint is narrow, reasonable, and definite; and provide for prompt final judicial determination

What is a prior restraint and what level of scrutiny applies?

Prior restraint involve a court order or other ban on speech or publication before it occurs

• Strict scrutiny applies: prior restraints are difficult to uphold

What makes a law unconstitutionally overboard?

Overbreadth: A law is overbroad if it regulates substantially more speech than the Const. allows to be regulated.

• An overbroad law restricts unprotected speech, but in doing so also restricts protected speech.

In what circumstances would a law be unconstitutionally vague?

Vagueness: A law is vague if a reasonable person cannot tell whether speech is prohibited or permitted.

What is symbolic speech?

Symbolic speech refers to expressive or communicative conduct (IE, conduct intended to convey a message)

When would a govt regulation of symbolic speech be constitutional?

Test: Govt can regulate symbolic speech if:

1. the regulation furthers an important govt interest

2. That govt interest is unrelated to suppression of the message; and

3. the impact on speech is no greater than necessary to further the important govt interest

Is government speech challenged under the First Amendment?

Govt speech cannot be challenged as violating the Free Speech Clause

Can the government compel a person to express a message they disagree with?

Govt cannot compel a person to express a message with which the person disagrees (EG govt cannot require people to salute the flag)

Can the govt use tax revenue to express a message only a minority of taxpayer support?

Govt may use tax revenue to express a govt message even if the taxpayer disagrees with the messages