ConLaw: Freedom of Speech and Assembly

Standard for Content-based Speech Restrictions

Content-based restrictions on speech generally must meet strict scrutiny and are presumptively unconstitutional outside of certain exceptions

Two Types of Content-Based Restrictions

Subject matter restrictions (dependent on topic) and viewpoint restrictions (dependent on the ideology of the message)

Standard for Content-Neutral Restrictions

Content-neutral speech regulations are generally subject to intermediate scrutiny. They must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (narrowly tailored) to further those interests

Prior Restraints

A Prior restraint is a judicial order or an administrative system that stops speech before it occurs

Void for Vagueness

A law regulating speech is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed

Overbroad Regulation of Speech

A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated. This means the law may not be enforced against anyone, even someone engaging in unprotected speech, unless a court has limited construction of the regulation so as to remove the overbreadth. The Court has noted that invalidation is only justified if the cited unconstitutional applications are realistic, not fanciful, and substantially disproportionate to the statute’s lawful sweep.

Fighting Words Statutes

Statutes prohibiting fighting words are effectively always unconstitutionally vague and overbroad

Official Discretion in Enforcement

A regulation cannot give officials broad discretion over speech issues: there must be defined standards for applying the law. Otherwise, the law is void on its face. If a licensing statute includes standards, a speaker may not ignore the statute but can challenge the denial of the permit. If a statute gives unbridled discretion, speakers need not apply for a permit

Regulations of Symbolic Speech/Conduct

The government can regulate expressive conduct only if the regulation seeks to serve an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose

Speech and Assembly Regulation Fuzziness

Speech and assembly regulations can generally be categorized either as content regulations (regulations forbidding communication of specific ideas) or conduct regulations (such as TPM regulations).

Trespass

Trespass laws regulate conduct, not content, and 1A does not provide a right to trespass to engage in speech. Trespass laws can be applied to government owned property if the property is a nonpublic forum.

Compelled Speech

The freedom to speak includes the freedom not to speak. The government generally cannot require people to engage in speech. The government may tax people and use revenue from the tax to express a message that some people disagree with, but people cannot be compelled to subsidize private messages. Hence, lawyers may be compelled to pay bar dues not non-union members cannot be compelled to pay union dues.

Mandatory Financial Support Exception: University Activity Fees

The government can require public university students to pay a student activity fee even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program as a whole is viewpoint neutral

Public Accommodation Laws

Laws which prohibit certain forms of discrimination when businesses offer goods and services to the public sweep too broadly when they compel speech. States cannot use public accommodations statutes to deny speakers the right to choose the content of their own messages

Anonymous Speech

The right to speak without disclosing one’s identity is protected by 1A

Government speech, generally

Government speech cannot be challenged as violating the Free Speech Clause, but it can be challenged on Establishment Clause or EPC grounds. The government is also generally free to voice its opinions and fund private speech that furthers its views while refusing to fund other private speech. Such speech will be upheld if it satisfies RBR

Speech Activity on Government Property vs Government Speech

Speech that occurs on government property can be analyzed by looking at: (1) the history of the expression at issue; (2) the public’s likely perception as to who (government or private citizen) is speaking; and (3) the extent to which the government has shaped the message

Spending Programs

Spending programs may not impose conditions that would limit 1A activities of fund recipients outside of the scope of the spending program itself

Government Funding of Private Speech, generally

When the government chooses to fund private messages, such as public university newsletters, it generally must do so on a viewpoint-neutral basis. There is an exception for funding the arts.

Trademark Protection

Trademark protection is not government speech but instead is private speech. Thus, it is subject to strict scrutiny

Prior Restraint Standard, Generally

Strict scrutiny applies to prior restraints and the government must show that some special societal harm would result absent the restraint

Procedural Safeguards for Licensing Systems

The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. The following procedural safeguards must be in place: (1) the standards must be narrowly drawn, reasonable, and definite; (2) it must be possible for an injunction to be promptly sought; and (3) there must be prompt and final determination of the validity of the restraint. Often, the government bears the burden or proving that the speech involved is unprotected

Unprotected or Less-Protected Speech: Content-based regulations

Unprotected and less-protected speech include: (1) inciting imminent lawless action; (2) true threats; (3) obscenity; (4) commercial speech; (5) defamatory speech; (6) liquor regulation; (7) privacy; and (8) speech by government employees

Inciting Imminent Lawless Action

The government may punish speech if there is a substantial likelihood of imminent illegal activity and the speech is directed at causing imminent illegality

True Threats

True threats are not protected. A person issues a true threat if they recklessly or intentionally uttered a statement that the speaker knew was of a threatening nature

Fighting Words

Technically, fighting words statutes are not prohibited, but SCOTUS will not tolerate statutes that are designed to punish only certain viewpoints. Practically, the regulation of fighting words that are not true threats is invalid

Obscenity, Generally

Obscene speech is not protected. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole by the average person: (1) appeals to the prurient interest in sex (community-based standard); (2) is patently offensive (based on contemporary community standards); and (3) lacks serious literary, artistic, political, or scientific value (national standard)

Obscenity and Zoning Regulations

A land use regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (such as increased crime rates or decreased property values). Regulations may not ban such establishments altogether

Obscenity and Child Porn

The government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be obscene if it only involved adults. The government may not bar visual material that appears to depict minors engaging in sexual conduct but actually uses young-looking adults or CGI.

Sale of Obscene Material to Minors

A state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience. A state may not prohibit the sale or distribution of material to adults merely because it is inappropriate for minors

Private Possession of Obscene Material

With the exception of child pornography, the government may not regulate private possession of obscene material in the home.

Seizures of Books and Films

Seizures of single instances of media may be made with a warrant based on PC. If the item is for sale to the public, a LEO may purchase the medium to use as evidence without a warrant. Large-scale seizures must be preceded by a full-scale adversary hearing and a judicial determination of obscenity

Profane and Indecent Speech

Profane and indecent speech is generally protected by 1A, but there are exceptions allowing for regulation of broadcast media and in schools

Movie Censorship

SCOTUS has found that time delays incident to censorship are less burdensome on movies than other forms of expression, and has allowed the government to establish censorship boards to screen movies before release, provided that the proper procedural safeguards are in place

False and Deceptive Commercial Speech

The government can prohibit commercial speech that is inherently misleading or fraudulent

Commercial Speech Illegal Activities

The government can prohibit commercial speech that proposes unlawful activity

Commercial Speech Risk of Deception

True commercial speech that inherently risks deception can be prohibited. For instance, the government may prevent professionals from advertising or practicing under a trade name and may prohibit attorneys from soliciting clients for profit in-person, but may not prohibit accountants from soliciting clients in-person

Other Commercial Speech

Other commercial speech can be regulated if intermediate scrutiny is met. Specifically, any other regulation of commercial speech will be upheld only if it: (1) serves a substantial government interest; (2) directly advances that interest; and (3) is narrowly tailored to serve that interest

Commercial Speech Complete Bans

Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring

Commercial Speech Required Disclosures

The government may require commercial advertisers to make disclosures if: (1) the disclosures are not unduly burdensome; and (2) they are reasonably related to the state’s interest in preventing deception

Defamation of Public Officials, Public Figures, or Involving Public Concerns

If the defamatory statement is about a public official or public figure or involves a public concern, 1A requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault. For public officials or public figures, the degree of fault required is actual malice. Actions for IIED are similarly limited when public figures or matters of public concern are in issue

Defamatory Speech: Private Figures and Non-Public Concerns

If the plaintiff is a “private figure” and the matter is not of a “public concern” the plaintiff can recovered presumed or punitive damages without showing actual malice

Liquor Regulation Speech

Under 21A, states have broad power to regulate intoxicating beverages. Laws relating to this power that restrict free speech will generally not be set aside unless they are irrational

Free Speech and Privacy

The government may not punish the truthful reporting of information that was lawfully obtained from the government. The government may not punish the media for broadcasting a tape of an illegally-intercepted call if the media did not participate in the illegality and the tape involves a matter of public concern. The government may limit dissemination of information to protect privacy.

Speech by government employees

Speech by government employees on the job and in the performance of their duties is not protected by 1A

Time, Place, and Manner (TPM) Restrictions, Generally

The government has the power to regulate the conduct associated with speech and assembly, although the extent of this power varies depending on the forum involved

Types of Forums for Speech

Public forums; Designated Public Forums; Limited Public Forums; Nonpublic Forums

Public Forums

Public property that has historically been open to speech-related activities, such as streets, sidewalks, and public parks, are public forums

Regulation of Speech in Public Forums

To avoid strict scrutiny, a government regulation on speech and assembly in a public forum must be: (1) content neutral; (2) a TPM regulation that serves an important government purpose and leaves open alternative channels of communication; and (3) is narrowly tailored to serve that important interest (but does not have to be the least restrictive means)

Permit Fees for Public Demonstrations

City officials cannot have discretion when setting permit fees for public demonstrations

Injunctions Against Speech in Public Forums

If the injunction is content-based, it must be necessary to achieve a compelling interest. If it is content-neutral, it must burden no more speech than is necessary to achieve an important government interest

Designated Public Forums

Public property that has not historically been open to speech, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy, is called a designated public forum. Example: public schoolrooms that are open after school for use by social, civic, or recreation groups.

Regulation of speech in Designated Public Forums (DPF)

A government regulation on speech in a DPF must meet the same test applicable to speech in a public forum

Limited Public Forums (LPF)

An LPF is government property not historically linked with speech and assembly but is opened for specific speech activity. The government can regulate speech in LPFs to reserve the forum for its intended use. Regulations are valid if they are (1) viewpoint neutral; and (2) reasonably related to a legitimate government purpose

Nonpublic Forums (NPFs)

NPFs are government properties not historically linked with speech and assembly and not held open for speech activities, such as military bases, prisons, and schools while classes are in session. Regulations on speech in NPFs need only be viewpoint neutral and reasonably related to a legitimate government purpose

Freedom of the Press

Generally, the press has no greater 1A freedom than a private citizen

Publication of Truthful Information

Generally, the press has a right to publish truthful information regarding a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further an interest of the highest order

Access to Trials

1A guarantees the public and press a right to attend criminal (and probably civil) trials. However, the right may be outweighed by an overriding interest stated in the trial judge’s findings. The right includes the right to be present at voir dire and at other pretrial proceedings unless the judge makes specific findings that closure is narrowly tailored to preserve a higher value

Press Testimony to Grand Juries

Members of the press may be required to testify before grand juries

Interviewing Prisoners

1A does not give journalists a right to interview specified prisoners of their choice or to inspect prison grounds

Press and Business Regulation or Tax

Press and broadcasting companies can be subject to general business regulations or taxes but cannot be targeted for special regulation or taxes. A tax or regulation impacting on the press or a subpart of the press cannot be based on the content of a publication absent a compelling justification

Broadcasting Regulations

Radio and TV broadcasting may be more closely regulated than the press. The paramount right is the right of the viewers and listeners to receive information of public concern rather than the right of broadcasters to broadcast what they please. This allows the government to forbid newspaper ownership of radio stations and to prohibit indecent speech over the airwaves

Fairness Doctrine

1A does not require broadcasters to accept political advertisements. However, a radio station may constitutionally be required to offer free broadcasting time to certain individuals. For example: opponents of political candidates or views endorsed by the station, or persons who have been personally attacked in a broadcast

Cable TV Regulation

Regulation of Cable TV is subject to a standard of review in between that of newspapers and broadcast media. A law requiring cable operators to carry local stations is subject to intermediate scrutiny because it is content neutral and constitutional because it serves the important interest of preserving economic viability of local broadcasters. However, content-based restrictions are subject to strict scrutiny

Internet Regulation

Strict scrutiny applies to regulation of the internet