CON LAW I (post-midterm)

Does it violate the First Amendment?

The First Amendment contains the free speech clause which states that Congress shall make no law abridging the freedom of speech.

Does it violate the right to free speech?

Free speech encompasses much more than spoken words.

Is it speech?

This includes (1) actual or compelled speech and (2) conduct conveying a message.

Is it compelled speech?

This is where the government forces citizens to convey a particular message and is viewed as an interference with free speech as much as a prohibition against speech.

What case exemplifies compelled speech?

WV BOE v. Barnette – A compulsory flag salute and pledge resolution violated the First Amendment when a state school board expelled public school students and threatened parents with prosecution for refusing to participate on religious or conscientious grounds because the government cannot constitutionally compel any citizen to profess or utter allegiance to a political doctrine, ideology, or belief that is contrary to their conscience.

Is it conduct conveying a message?

This includes (1) free association and (2) expressive conduct.

Is it free association?

It doesn’t matter the purpose for organizing or associating; any organization that centers around ideas is covered. Association for criminal activity is not protected.

What is the level of judicial scrutiny for government interference with free association?

Strict scrutiny

What case exemplifies a violation of freedom of association?

NAACP v. Alabama ex rel. Patterson – A state court contempt order violated the Due Process Clause of the Fourteenth Amendment when the state attempted to compel production of the membership lists of an unpopular civil rights organization because compelled disclosure encroached upon the member’s constitutional right to freedom of association by exposing them to economic retaliation, physical intimidation, and societal hostility without a compelling state interest.

What case exemplifies no violation of freedom of association?

Roberts v. US Jaycees – Applying a state public accommodations law did not violate the First Amendment when the state required a young men’s civic organization to admit women as full voting members because the law served a compelling state interest in eliminating gender discrimination through the least restrictive means without substantially infringing on the members’ ability to express the specific views that brought them together.

Is it expressive conduct?

This includes (1) silence and (2) physical acts and transactions that communicate thoughts, ideas, or artistic expression and is often referred to as “symbolic speech.” This requires that (1) the person intended to send a message and (2) if so, others were likely to understand the general purpose of the message the individual had in mind.

What case exemplifies a violation of expressive conduct?

Texas v. Johnson – A state statute criminalizing desecration of venerated objects violated the First Amendment when a political protester burned an American flag outside a national political convention because burning the flag was expressive conduct and the government’s asserted interest in preserving the flags as a national symbol of unity was directly related to the suppression of the speaker’s expressive message.

What case exemplifies no violation of expressive conduct?

US v. O’Brien – A federal statute prohibiting the destruction of draft registration certificates did not violate the First Amendment when an individual burned his selective service card on the steps of a courthouse to protest the Vietnam War because the regulation targeted the non-communicative element of conduct and served an important governmental interest in the administrative functioning of the draft that was unrelated to the suppression of free expression.

Are speech and non-speech elements combined?

If so, the court requires an important governmental interest in regulating the non-speech element to justify interference with communication.

What type of challenge on the basis of free speech is it?

These include (1) as-applied challenges and (2) facial challenges.

What is an as-applied challenge?

This means that the government restriction of speech, as applied to a given person and their particular circumstance, is unconstitutional.

What is a facial challenge?

This means that the particular restriction on speech is unconstitutional altogether, there is no reasonable application of such restriction that would be constitutional, and the restriction is either unconstitutionally vague or substantially overbroad.

What level of judicial scrutiny does the governmental restriction have?

This often depends on whether the government’s restriction is targeting the message of the speaker or is a generally applicable regulation that accidentally catches speech in its web.

Is the government’s restriction content-based?

Content-based means that the regulation or restriction is based on what the speaker is actually saying – the content of the speech – and requires a strict scrutiny standard. Content-based restrictions are  presumptively invalid.

What cases exemplify a content-based restriction?

Matal v. Tam – The disparagement provision of federal trademark regulation law violated the Free Speech Clause when the patent and trademark office refused to register the trademark of an Asian-American rock band called “The Slants” because trademarks constitute private speech, and barring offensive or disparaging terms constitutes viewpoint-based discrimination that fails strict scrutiny.

Reed v. Town of Gilbert – A municipal sign code violated the First Amendment when the municipality subjected directional church signs to more severe size, placement, and time limitations than political or ideological signs because regulations that target speech based on its communicative content or subject matter are content-based on their face and cannot survive strict scrutiny.

Does it pass strict scrutiny?

This is very difficult and requires (1) the government’s interest in restricting speech is very compelling, (2) the restriction is narrowly tailored to that government interest (not overly- or under-inclusive), and (3) there are no reasonable, less restrictive alternatives.

Is it exempt from strict scrutiny?

These exceptions include (1) violent speech, and (2) obscenity.

What case exemplifies an exemption to strict scrutiny?

Brandenburg v. Ohio – A state criminal syndicalism statute violated the First Amendment when the state punished a speaker for delivering inflammatory, racist remarks at a rally because the constitutional guarantee of free speech does not permit the government to proscribe advocacy of force or law violation unless such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.

Is it commercial speech?

This is governed by the Central Hudson test, which determines whether a government’s regulation of commercial speech is valid or invalid.

Did the restriction seek to prevent secondary effects of the expression?

If so, it may be considered content-neutral.

What case exemplifies the secondary effects doctrine?

City of Renton v. Playtime Theatres, Inc. – A zoning ordinance prohibiting adult motion picture theatres within 1,000 feet of residential zones, schools, and parks was constitutional under the First Amendment when the city restricted the commercial location of adult entertainment because the ordinance was analyzed as a content-neutral regulation designed to alleviate the secondary effects of such businesses (such as crime and neighborhood deterioration) rather than suppress the speech itself, and it left open reasonable alternative avenues of communication.

Is the restriction aimed at expressive or harmful conduct, or free association, rather than the message conveyed?

This includes nudity and is subject to intermediate scrutiny and the requirements that (1) the government’s asserted interest is unrelated to the expressive conduct and (2) the restriction must be no greater than what is needed to enable the government to be successful in its goal.

Is the government’s restriction content-neutral?

These apply to all speech, regardless of what message or topic the speaker is addressing, and require an intermediate scrutiny standard. Content-neutral restrictions are presumptively valid.

What case exemplifies content-neutral restrictions?

Ward v. Rock Against Racism – A municipal sound-amplifying guideline did not violate the First Amendment when a city required performers using a public park bandshell to use city-provided sound equipment and a city-designed technician because the requirement was a content-neutral time, place, and manner regulation narrowly tailored to satisfy a substantial government interest in controlling noise without being required to choose the least restrictive means.

Does it pass intermediate scrutiny?

This requires that the restriction (1) serve an important government interest, (2) be narrowly tailored to the government’s purpose, and (3) the government would be less effective in pursuing its goal without the restriction.

Is the regulation a time, place, or manner restriction?

If so, the court must consider whether the restriction permits reasonable alternatives for communication of the message or content.

What are the policy concerns surrounding the First Amendment?

• Freedom to voice one’s opinions is at the heart of the American commitment to free speech because speech is necessary for a democratic political system to function and promotes the marketplace of ideas.

• This right is central to personal freedom because the ability to speak what’s in one’s heart is a basic aspect of personal identity and fulfillment.

• The heart of the First Amendment free speech clause is to prevent censorship.

• Our ability to gather in organizations is a central aspect of our participation and public discourse.

• The idea that we could be forced by the government to profess a thought with which we don’t agree is about as antithetical to democratic ideals as anything imaginable.

What case exemplifies policy concerns associated with freedom of speech?

US v. Rumely – Congress could not compel the disclosure of a political book distributor’s customer lists when it investigated lobbying efforts under an ambiguous committee resolution because a publisher’s distribution of materials operates within the marketplace of ideas and a broad investigatory intrusions risk abridging freedom of the press under the First Amendment.

What are the steps to evaluating a violation of free speech?

(1) What type of challenge?

(2) Is there a government restriction?

(3) Is it speech?

(4) Does the restriction violate the right to free speech?

What are the two types of content-based restrictions?

viewpoint-based and subject-matter-based

What case exemplifies viewpoint-based content-based restrictions?

Matal v. Tam – The disparagement provision of federal trademark regulation law violated the Free Speech Clause when the patent and trademark office refused to register the trademark of an Asian-American rock band called “The Slants” because trademarks constitute private speech, and barring offensive or disparaging terms constitutes viewpoint-based discrimination that fails strict scrutiny.

What case exemplifies subject-matter-based content-based restrictions?

Reed v. Town of Gilbert – A municipal sign code violated the First Amendment when the municipality subjected directional church signs to more severe size, placement, and time limitations than political or ideological signs because regulations that target speech based on its communicative content or subject matter are content-based on their face and cannot survive strict scrutiny.

Is it a conditional benefit that requires the relinquishment of a constitutional right?

The unconstitutional conditions doctrine prohibits the government from using its funding or services to coerce speech. However, the government is not responsible for the effect that its removal of funds may have on the practical ability of the denied recipient to engage in speech as long as it is not completely prohibiting the recipient from engaging in speech.

What cases exemplify the unconstitutional conditions doctrine?

Speiser v. Randall – A state constitutional tax requirement violated the Fourteenth Amendment’s Due Process and Free Speech protections when the state required military veterans to sign a loyalty oath disavowing the unlawful overthrow of the government as a condition to receiving a property tax exemption because conditioning a valuable governmental benefit on the forfeiture of protected speech is functionally identical to imposing a fine on speech and constitutes an impermissible unconstitutional condition.

Rust v. Sullivan – Federal Title X program regulations did not violate the First Amendment when the government prohibited fund recipients from providing abortion counseling, referrals, or advocacy within federally funded family-planning programs because the government may selectively fund its preferred policy objectives without infringing free speech, provided the restriction only governs the expenditure of public funds and permits recipient organizations to engage in prohibited speech through physically and financially distinct private operations.

Is it related to access to information?

Free speech necessarily includes some protection for the access to information.

What case exemplifies access to information?

Branzburg v. Hayes – The First Amendment does not grant journalists a special testimonial privilege when reporters were subpoenaed by grand juries to testify regarding criminal conduct witnessed under promises of source confidentiality because requiring reporters to respond to relevant grand jury subpoenas in an ongoing investigation applies a generally applicable civic obligation that does not constitute an unconstitutional infringement on news gathering or access to information.

Is it regarding a closed trial?

The First Amendment offers some protection of the right of the public to attend trials. An overriding reason is necessary to close the trial, which should include (1) a particular reason why an open trial would result in an injustice against the defendant and (2) a consideration of whether other alternatives like sequestering the jury could resolve the problem rather than closure of the courtroom.

What case exemplifies closed trials?

Richmond Newspapers v. Virginia – A trial judge’s closure order violated the First Amendment when the court closed a criminal murder trial to both the press and the general public at the request of the defense and without prosecution objection because the First Amendment historically guarantees the public and the press an implicit right of access to attend criminal trials, which cannot be foreclosed absent an overriding, compelling interest and consideration of less restrictive alternatives.

What case exemplifies strict scrutiny?

Son of Sam case – NY’s Son of Sam law violated the First Amendment when the state required income derived from an accused or convicted criminal’s expressive works to be escrowed for victims because prohibiting monetary incentives to speak imposes a direct, content-based burden on speech that failed strict scrutiny due to overbroad drafting that encompassed speech regardless of whether the works glorified or discouraged crime.

What is the standard of review for exemptions to strict scrutiny?

a rational basis for the restriction, unless there is content-based discrimination within an excepted category

Is it violent speech?

This includes (1) incitement of violence, (2) fighting words, and (3) true threats that promote imminent, lawless action. Free speech includes the right to advocate for unlawful or violent conduct. To interfere, the government needs a compelling interest unrelated to the content.

Does the speech incite violence?

This requires (1) a clear intent to incite or produce imminent, lawless action, (2) that the action is dangerous and imminent, and (3) that the speech is likely to produce such action.

What case exemplifies incitement?

Brandenburg v. Ohio – A state criminal syndicalism statute violated the First Amendment when the state punished a speaker for delivering inflammatory, racist remarks at a rally because the constitutional guarantee of free speech does not permit the government to proscribe advocacy of force or law violation unless such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.

Is the action imminent?

This is shown by a specific target and an urgent ask to produce action in the immediate future.

Is the speech fighting words?

The government can restrict speech that, by its very utterance, inflicts injury or incites immediate breach of the peace due to a likelihood of retaliation. This looks to words directed at a specific person or persons that are likely to provoke a violent reaction.

What case exemplifies fighting words?

Chaplinsky v. NH – A state statute prohibiting offensive, derisive, or annoying words on public streets did not violate the First Amendment when a speaker face-to-face called a town marshal a “fascist” and “racketeer” because “fighting words” carry negligible social value in the marketplace of ideas and fall outside the scope of First Amendment protection.

Is the speech a true threat?

The government can punish intimidating speech only if uttered with the specific intent to intimidate a particular person or persons.

Is there intent to intimidate?

This does not require intent to actually carry out the threatened act and cannot be presumed.

What case exemplifies intent to intimidate?

VA v. Black – A state cross-burning statute’s evidentiary presumption violated the First Amendment when the law allowed a jury to infer an intent to intimidate solely from the physical act of burning a cross because while the government may ban “true threats,” it cannot constitutionally treat the expressive symbol of cross-burning as prima facie evidence of that intent without case-specific proof.