First Amendment Speech Doctrine: Forums, Tests, and Exceptions

Steps in Order

1. State action?

2. Infringement?

3. Government Speech?

4. Speech or Expressive Conduct?

5. Facial Defects?

6. Categorize law

7. Check special doctrines

State Action Doctrine

the 1st Amendment cannot be enforced against private parties

Infringement?

1. Allow civil liability for expression

2. prevent comp. for speech

3. compel expression

4. condition a benefit on forgoing speech

5. pressure individuals not to speak

6. regulate expressive conduct

Government Speech Doctrine

When gov speaks for itself, free speech clause doesn't apply

Government Speech 3-Factor Test

1. History - has medium traditionally been used my gov to communicate to public

2. Public perception - would an observer reasonably believe the speech is endorsed by gov

3. Control - does gov have editorial control over message

Government Speech - Forum v. Speech

If forum, public forum rules apply. If government speech applies, then no 1A protection

Public Forum Categories

Traditional, Designated, Limited, Nonpublic

Traditional Public Forum

Streets, sidewalks, parks. C.B get S.S., C.N. TPM get I.S.

Designated Public Forum

Gov has intentionally opened property for expressive use by the gov; same rules as Trad

Limited Public Forum

Open for specific topics or groups; restrictions valid if V.N. and reasonable in light of forum's purpose

Nonpublic Forum

Military Bases, Airport Terminals. Restriction valid if V.N. and reasonable.

Unconstitutional Conditions Doctrine

A condition that penalizes protected speech is invalid. Decision to not subsidize speech is valid.

Limits v. leverage Rule

Gov can define limits of funded program, but cannot leverage funding to reg speech outside of program

Compelled Speech Rule

Gov cannot force individuals to express, endorse, or subsidize messages contrary to their beliefs

Compelled Association Rule

Gov cannot force a group to include a member if inclusion would significantly affect its ability to advocate its viewpoint

Anonymous Political Speech Rule

A ban on anonymous campaign literature burdens core political speech and gets strict scrutiny

Expressive Conduct Test

1. Sub - Does actor intend to convey a particular messae

2. Obj - is their a high chance that message will be understood by those who view it?

O'Brien Test

Use when gov's interest unrelated to the message to test if law is valid.

1. is it within gov's Con power

2. furthers sub gov int

3. interest is unrelated to suppression of free expression

4. incidental restriction is no greater than essential to further int

Vagueness Def

facially invalid If person of ordinary intelligence cannot tell what's prohibited OR if it gives police unbridled, standard less discretion in enforcement

Overbreadth Def

facially invalid if law reaches SUBSTANTIALLY more protected expression than Con allows to be restricted

Prior Restraints Burden

Presumed unconst. Gov must show pub would cause direct, immediate, and irreparable harm to national security or public safety.

Collateral Bar Rule

Court order must be obeyed until set aside; unconstitutionality of court order will not shield person from consequences for disobedience

Prior Restraint - Licensing rule

Licensing scheme that gives official unbridled discretion over expression is facially invalid; do not need to apply for license before facial challenge

Unprotected Speech Categories

Incitement, True threats, Obscenity, Child Porn, Defamation, Fraud

Incitement - Bradenburg Test elements

1. Directed to inciting or producing

2. imminent lawless action, and

3. likely to produce such action, and

4. speaker has intent to cause imminent illegality

Incitement - Public officials rule

Gov cannot punish legislator for opposing gov's policies, legislators don't lose const rights upon election, oaths can't suppress political speech

Incitement - Nonviolent protest

Nonviolent elements of boycott are protected, org not liable for violence unless it incited/authorized it

Incitement - March injunctions

Gov must provide strict proc safeguards before enjoining expressive demonstrations

Fighting words Def

Personally abusive epithets, said face-to-face to a specific person, that are likely to provoke that person to immediate violence.

True threats Def

Serious expressions of intent to commit unlawful violence against a person or group; speaker must act with at least a reckless mental state regarding the threatening nature of the statement

Obscenity - Miller Test

1. Prurient Interest - Average person would find the work in totality appeals to the prurient interest (shameful/morbid interest in sex). Local standard.

2. Patently Offensive - work depicts/describes sexual conduct, as defined by state law, in a patently offensive way (excessive sexual detail, nudity not enough).

3. Lacks serious value - Work lacks serious artistic, political, or scientific value. national standard.

Obscenity - Private Possession Rule

Cannot criminalize p.p. of obscene material in one's home

Child Porn - Virtual Rule

Virtual child porn is not categorically unprotected, ban on it faces S.S.

Non-obscene sexually explicit Speech Rule

Consider low-value, gives gov more latitude to regulate it

Secondary Effects Doctrine

Facially C.B. law is treated as C.N. if justified by C.N. purpose such as avoiding secondary effects, not the content itself

Defamation - Public Official Elements

1. Plaintiff is public official or running for P.O.

2. Plaintiff must prove case by clear and convincing evidence

3. Plaintiff must prove statement was false

4. Plaintiff must prove defendant knew statement was false or acted with reckless disregard for the truth

Commercial Speech - Central Hudson Test (I.S.) Elements

1. Speech must concern lawful activity and not be misleading

2. asserted gov int must be sub

3. regulation must directly advance int

4. must be no more extensive than necessary

Indecent Speech Rule

Gov can't criminalize indecent/non-obscene speech or violent speech in public without compelling reason, can regulate indecent speech on broadcast, tv, radio.