IV. 1stA - Expression

Why Protect Speech?

Self-Governance (Meiklejohn/Blasi): Speech is essential for democracy and holding the government accountable; matches to political speech receiving the highest protection

Marketplace of Ideas (Holmes/Mill): Competition among ideas is the best way to discover truth

Autonomy/Self-Expression (Baker/Marshall): Speech is intrinsically valuable for individual identity and the human spirit

Tolerance (Brandeis): Exposure to diverse/intolerant views promotes a more stable, deliberative society

The "Method" for Free Expression (Analytical Framework)

Threshold: state action + substantial infringement: consider govt speaker, vagueness, prior restraint, forum, TPM

1. Is govt regulation content-neutral? Consider subject matter, viewpoint.

2. Is regulation infringing on protected speech?

Mechanisms of Infringement

Prohibitions/Bans, Prior Restraints (presumptively unconstitutional), Conditions (e.g., removing funding), or Compelled Speech (forcing someone to speak/salute a flag)

0. threshold considerations

state action and substantial infringement

tripwires

govt speech

compelled speech

State Action + substantial infringement

Direct and substantial burden:

• bans, criminal penalties, civil liability

• licensing / permits (prior restraint)

• funding conditions

• compelled speech

tripwires (facial invalidity)

Vagueness

Overbreadth

Prior restraint / unbridled discretion

→ if triggered, law likely invalid without full scrutiny.

Cases: Near v. MN; NYT v. US

vagueness

a law is unconstitutionally vague if a RP cannot tell what speech is prohibited vs. permitted.

• No notice – can break a law you didn’t know was restricted conduct

• Selective prosecution – really vague law, might let things slide if political friend, but if political enemy = might prosecute

• Chilling effect – if not clear about what’s prohibited and what’s permitted, people will walk away from that vague line of the speech

overbreadth

The law prohibits a substantial amount of fully protected speech while trying to regulate unprotected conduct.

CASE: Jews for Jesus

Unconstitutional Overbreadth (but not vague): law that outlaws 1A activity in the airport. Prohibits “any 1A speech” – that means everything you do. Law fails as a 1A violation.

prior restraint & unbridled discretion

Government censors publication in advance (Near, NYT v. US) or grants licensing officials unchecked power to permit/deny speech (City of Lakewood).

govt speech

gov’t can make content-based choices, but must be viewpoint neutral

When the gov’t has to make a content-based choice, it’s allowed to make the content-based choice, but it MUST be viewpoint neutral (gov’t can’t make a viewpoint based decision)

if government itself is speaking → 1A does not apply

(but no viewpoint discrimination in some contexts)

NEA v. Finley

when the gov’t must make a choice among speakers, it is permitted to make this distinction based on content. But it is not permitted to decide based on viewpoint.

pleasant grove

when the gov’t itself speaks, speech clause restrictions don’t apply (but Establishment Clause restrictions still do)

compelled speech

Gov’t cannot compel speech (with exceptions) – 1A right to speech also provides right not to speak

Exceptions = compelled testimony, drug company warning labels (regulatory)

*most (if not all) compelled speech is about a specific type of speech, very unlikely to have content-neutral compelled speech requirement

So most compelled speech regulations are evaluated under SS

Barnette

1A protects against someone being compelled to speak against their will.

F: π adopts a resolution ordering students to salute the flag and imposing jail time for parents. Children who are members of Jehovah’s Witness refuse. 1A challenge.

H: Resolution is unconstitutional

Right not to speak is not absolute, can be compelled to speak when there’s a clear and present danger – ex. compelled testimony, drug company warning labels

But no clear and present danger here re: saluting flag, no nat’l security threa

303 creative

Forcing someone to engage in creative expression in violation of their religious beliefs constitutes compelled speech in violation of the First Amendment.

Rumsfeld v. Forum for Academic & Institutional Rights

Court found that law schools must allow military to recruit on campus but it’s not a form of impermissibly compelled speech as law schools can still actively oppose military policy of don’t ask, don’t tell

Janus v. AFSCME

Law challenged: Law requiring public employees to pay union "agency fees."

Takeaway: Compelling public employees to subsidize private speech they disagree with is coerced speech and a violation of the 1st Amendment

Const? No

1. what kind of speech is it?

protected, less protected, unprotected

Fully protected (Core speech)

(speech in public / designated / limited forums) per se SS. highest constitutional shield.

1. Political speech (incl campaign expenditures), 

2. artistic, academic, and symbolic speech, and 

3. viewpoint restricted speech

Presumptions against prior restraint, vague and overinclusive laws, conditions

Campaign spending: Buckley v. Valeo

Law challenged: Campaign spending.

Takeaway: Expenditures are pure speech (SS); individual contribution limits receive lower scrutiny to prevent corruption

Const? Mixed

Lesser protected speech

Intermediate protection with specific modification for type of speech. Apply their own test

1. Expressive conduct/symbolic speech (O’Brien test)

2. Hate speech (not rising to true threat), porn, profanity (sex-related and curse words)

3. Commercial (Central Hudson, intermediate)

4. Defamation and libel

Hate speech

hate speech can be regulated IF it qualifies in category of unprotected speech (ex. incitement to illegal activity or a true threat)

Expressive Conduct: O’Brien

Rule: Conduct is speech if there is intent to convey a particularized message and a likelihood it is understood. 

Content neutral → O’Brien

Content-based → SS

O’Brien Test:

A regulation of expressive conduct is valid if:

1. Within the constitutional power of the government.

2. Furthers an important/substantial govt interest.

3. Govt interest is unrelated to the suppression of expression.

4. Incidental restriction of 1A freedoms is no greater than essential to further that interest

Expressive Conduct: Texas v. Johnson

Law challenged: flag burning ban

Takeaway: If the government regulates conduct because of its message (symbolism) (content-based), apply Strict Scrutiny rather than O’Brien test; flag burning is protected expression

Const? no

Commercial: Central Hudson

Law challenged: Utility promo ban.

Takeaway: 4-Part Test: 

1. Speech concerns lawful activity and is not misleading.

   1. No? Unprotected, regulation valid.

2. Regulation is upheld if:

   1. Government has a substantial interest.

   2. Regulation directly advances that interest.

   3. Regulation is not more extensive than necessary ( not LRA)

Const? no

Commercial: Virginia Board of Pharmacy

truthful speech that proposes a commercial transaction receives some 1A protection

F: a state law prohibits pharmacists from advertising their drug prices. 1A challenge.

H: law is unconstitutional

Commercial: Bolger

advertisements that also contain educational or other informational material are not automatically converted into non-commercial speech. 

Factors to consider include 

(i) whether they otherwise act as advertisements, 

(ii) whether they reference a specific product, and 

(iii) whether there is an economic motivation for distributing the informational material. (rule – threshold q of what is / not commercial)

Defamation: NYT v. Sullivan

Rule: Public officials must prove "Actual Malice" (knowledge of falsity or reckless disregard) to recover damages

Unprotected speech

(+ speech in nonpublic, authoritarian, and most private forums). 

Outside 1A protection. Government may regulate after meeting specific tests. Very deferential review.

1. Fighting words (Chaplinsky: inflict injury or incite immediate breach of peace)

2. Incitement (Brandenberg: seriousness, imminence, likelihood, lawless)

3. True Threat

4. Obscenity (Miller: prurient interest, patently offensive, lacks serious value)

5. Child Porn (unprotected due to harm)

6. Secondary effects and conduct

Just ask: does it fit the category? Once you have classified it as unprotected, there is not much more analysis to do.

Fighting Words: Chaplinsky

Rule: Unprotected if words by their very utterance inflict injury or incite immediate breach of peace

Fighting words: Cohen

for fighting words exception to apply, speech must be directed at a particular listener and be likely to invoke a violent response

F: π wears jacket to courthouse that says “Fuck the Draft.” Convicted of breaching the peace.

Fighting words: Texas v. Johnson

fighting words exception doesn’t apply bc flag burning is not directed at a particular listener and likely to invoke a violent response

Incitement: Brandenburg

Rule: Brandenburg Test: Unprotected if speech is 

1. intended to and 

2. likely to produce imminent lawless action

True Threats: Black

Rule: Serious expressions conveying that a speaker means to commit an act of unlawful violence do not receive 1A protection and may be restricted.

Obscenity: Miller

Rule: Miller test

1. Prurient interest

2. Patently offensive

3. Lacks serious literary / artistic / political / scientific value

obscenity: roth

there is a long history of regulating obscenity. Also, obscene speech has no “social redeeming importance.” Obscenity receives no 1A protection.

Child pornography: NY v. Ferber

Case: NY v. Ferber

Takeaway: Child pornography is a separate unprotected category due to the direct harm to children in its production

2. classify the restriction

content neutral

content based

• viewpoint

• subject matter

content-neutral

laws that apply to all speech regardless of message. 

Must survive time, place, and manner (TPM) restrictions. Triggers Intermediate Scrutiny

• (i) Substantial gov’t interest, 

• (ii) Restriction is narrowly tailored to advance that interest, 

• (iii) Restriction can leave open alternative channels of communication (restriction does not need to be the least restrictive alternative)

CASES: Ward v. Rock against Racism (volume control)

*Not as concerned with issues re: gov’t controlling public speech, so lower scrutiny

ward v. rock against racism

Law challenged: Sound tech volume rule.

Takeaway: TPM Gold Rule: Narrow tailoring for time/place/manner does NOT require the government to use the Least Restrictive Alternative (LRA)

Const? Yes

content-based

• law that applies to certain speech because of the subject or idea discussed (the topic, idea, type of message is apparent on its face)

• Triggers Strict Scrutiny. Presumptively unconstitutional

  • Viewpoint-Based: The "most egregious" form of discrimination; government favors one side of a debate (Matal v. Tam)

  • Subject-Matter Based: Government regulates based on the topic (Reed v. Town of Gilbert)

*very concerned with gov’t controlling speech about certain people + certain subjects so heightened scrutiny

subject matter-based

When gov’t regulation makes content based, subject matter based regulation, regulation can only survive if it passes SS

Subject matter neutral = gov’t cannot regulate speech based on the topic of the speech

Reed v. Town of Gilbert

Gov’t restrictions on speech that are content-based on their face are subject to SS.

To continue sign restrictions, the town can either:

1. Make sign restrictions content-neutral (based on time, space, manner)

2. Make restrictions that survive SS

viewpoint-based

Viewpoint based regulations are mainly unconstitutional.

Gov’t must only make viewpoint neutral regulations (= both sides can speak)

Viewpoint based = only restrict / regulate one side of the issue but the other side can speak (e.g., “no signs criticizing the mayor). 

Triggers Strict Scrutiny and almost universally fatal. 

CASE: Matal v. Tam

matal v. tam

Law challenged: Disparagement clause.

Takeaway: a gov’t restriction on speech that causes offense is discrimination on the basis of viewpoint and must survive strict scrutiny.

Viewpoint Discrimination (favorable vs. derogatory marks) is "egregious" and presumptively unconstitutional; the 1A protects the "thought we hate".

Const? No

3. forum analysis

only if on govt/public property

Traditional Public Forum

Streets, sidewalks, parks.

Content based → strict scrutiny

Content neutral → TPM (no LRA requirement (Ward))

1. Content-neutral

2. Narrowly tailored to significant interest

3. Ample alternative channels

The TPM "Reasonableness" Test (for content-neutral regulation in public forum)

For a TPM restriction to be valid, it must meet three elements:

1. Content Neutrality: Justified without reference to content.

   1. Significant Interest & Narrow Tailoring: Must serve a significant interest and be narrowly tailored.

2. The Ward Rule: For TPM, narrow tailoring does NOT require the Least Restrictive Alternative (LRA)

3. Ample Alternative Channels: Must leave open other ways for the speaker to communicate

Mosley

for gov’t spaces that have traditionally been open to public speech, content-based restrictions must survive SS.

F: a city ordinance prohibits picketing near schools in certain time periods but excludes certain labor-related speech. 1A + EPC challenge

H: ordinance is unconstitutional – ordinance is content-based and fails SS

• Excluding certain labor-related speech = content based distinction 

• Bc public forum, gov’t cannot discriminate based on the content of the speech or the regulation must pass SS

Designated Public Forum

A gov’t space that is not traditionally open for speech, but the gov’t voluntarily intentionally opened for public speech. 

• When open, it is treated like a public forum and restrictions must be:

• content-neutral (TPM restriction IS) and 

• cannot be content based or otherwise subject to SS 

• Viewpoint based restrictions are limited

Basically same rules as traditional public

Limited Public Forum

subject-matter restrictions allowed if Reasonable and Viewpoint Neutral. (example: can discuss abortion pro/con). Key Case: CLS v. Martinez

CLS v. Martinez

Law challenged: "All-comers" policy.

Takeaway: In a Limited Public Forum, the government may restrict speech if the rule is reasonable and viewpoint neutral

Const? Yes

nonpublic forum

(Jails/Military Bases). Restrictions need only be reasonable and viewpoint neutral.

4. apply appropriate level of scrutiny

strict? intermediate? special?

Strict scrutiny

TRIGGER: content-based and viewpoint-based restrictions

ENDS REQUIRED: must serve a compelling govt interest

MEANS REQUIRED: must use LRA / narrowly tailored

intermediate scrutiny

TRIGGER: content-neutral restrictions (TMP) and expressive conduct.

ENDS REQUIRED: must serve an important or substantial govt interest

MEANS REQUIRED: must be narrowly tailored (but LRA not required) + leave open ample alternative channels

special tests override

Commercial → central hudson

Conduct → o’brien

Defamation → sullivan

override: commercial speech (lesser protected)

Central Hudson Test:

1. Speech concerns lawful activity and is not misleading.

   1. No? Unprotected, regulation valid.

2. Regulation is upheld if:

   1. Government has a substantial interest.

   2. Regulation directly advances that interest.

   3. Regulation is not more extensive than necessary ( not LRA)

override: content-neutral conduct

O’Brien Test:

A regulation of expressive conduct is valid if:

1. Within the constitutional power of the government.

2. Furthers an important/substantial govt interest.

3. Govt interest is unrelated to the suppression of expression.

4. Incidental restriction of 1A freedoms is no greater than essential to further that interest

content-based gets SS

override: defamation

Plaintiff seeks to recover for defamation.

1. Public official / public figure → requirement: must prove falsity AND actual malice (knowledge of falsity or reckless disregard)

   1. Key case: NYT v. Sullivan. (Note. Challenges exist: Thomas/Gorsuch dissents in Berisha)

2. Private figure 

   1. → matter of public concern → actual malice may be required for certain damages (uncertain application)

   2. → matter of private concern → actual malice NOT required. Lower threshold for recovery

Freedom of Association

to join w/ others either in personal relationships or as part of a group usually having a common viewpoint or purpose and often exercising the right to assemble and to free speech.

Right to associate protected for (1) intimate and (2) expressive Association

Intimate: Small, highly selective, deep personal bonds (e.g., family). These receive the highest protection

Expressive: Groups formed for 1st Amendment activity (speech, religion, advocacy). Protection depends on whether the exclusion is integral to the message

Prohibiting / Punishing Membership

The government cannot criminalize mere membership.

Under the Scales Test, they must prove

1. active affiliation,

2. knowledge of illegal goals, and

3. specific intent to further those goals

Scales v. US

Law challenged: Law punishing membership in the Communist Party.

Takeaway: Gov may only punish membership if it proves: 

(1) Active affiliation, 

(2) Knowledge of illegal objectives, and 

(3) Specific intent to further them

Const? Yes

Membership Disclosure

Laws requiring lists of members trigger Exacting Scrutiny (substantial relation between disclosure and an important interest); they cannot be used to chill association (NAACP v. Alabama)

NAACP v. Alabama

Law challenged: Compelled disclosure of membership lists.

Takeaway: 

Exacting Scrutiny: If disclosure will "chill" association, the gov must show a compelling interest and a substantial relation between the info sought and that interest

Const? No

Compelled association/inclusion

The government cannot force individuals or groups to include members or fund speech if doing so would alter or burden their expressive message.

1. Compelled speech

2. Compelled association

compelled speech

Expression itself. Government forces someone to create or fund speech. Usually strict scrutiny.

Cases: Janus; 303 Creative

Use when: 

• design, writing, artistic services

• Funding speech (union dues)

compelled speech: 303 creative

Law challenged: Law forcing a designer to create same-sex wedding websites.

Takeaway: The gov cannot use public accommodation laws to compel expressive design (pure speech) that contradicts a speaker's firmly held beliefs

Const? No

compelled association/speech

Laws like the ADL cannot compel speech or design (303 Creative) and

cannot force inclusion if it significantly impairs the group’s ability to advocate its core message (Boy Scouts v. Dale)

Roberts v. Jaycees (and ADL rule)

Law challenged: Law forcing a civic group to admit women as full members.

Takeaway: Standard for ADLs: Anti-discrimination laws override association rights for large, unselective, non-intimate groups where inclusion doesn't alter the core message. Gov wins

Const? Yes

Boy Scouts v. Dale

Law challenged: Law forcing the group to accept an LGBTQ+ scout leader.

Takeaway: Expressive private organizations have a right to exclude members if their inclusion would significantly impair the group’s ability to advocate its core message. Group wins

Const? No

FREEDOM OF PRESS

prior restraint, right of access, press as shield, defamation

Prior Restraint

Heaviest presumption against constitutionality (Pentagon Papers)

Presumptively unconstitutional unless it involves issues of "utmost importance" (e.g., wartime troop movements)

Near v. Minnesota

Law challenged: Nuisance law used to enjoin "scandalous" newspapers.

Takeaway: Prior Restraints are presumptively unconstitutional. They are only permitted in exceptional cases of "utmost importance" (e.g., troop movements in wartime)

Const? No

NYT v. United States (Pentagon Papers)

Law challenged: Injunction to stop publication of classified war documents.

Takeaway: Government carries a "heavy burden" to justify a prior restraint. Speculative claims of national security harm are insufficient to meet this burden

Const? No

Right of Access (sword)

Press has no special privilege beyond the public. However, there is a right to access criminal trials based on history and logic (Richmond Newspapers). Look at whether the proceeding was:

1. traditionally open 

2. and if there are good policy justifications for opening it

Press as a shield

Generally, the press has no greater rights than the public, but the government cannot retaliate against them through targeted regulations like specific taxes

NYT v. Sullivan

Law challenged: Civil libel judgment for a newspaper advertisement.

Takeaway: Actual Malice Standard: Public officials must prove a false statement was made with knowledge of falsity or reckless disregard for the truth by clear and convincing evidence

Const? No