1st Amendment: Freedom of Speech & Press

1st amendment text

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances"

Free speech & Press incorporated to the states by 2 cases

Speech - Gitlow v NY

Press - Near v Minnesota

Masses Publishing v Patton

• Government may NOT prohibit speech critical of United States but does NOT DIRECTLY incite persons to violate law

• Must have a sufficient proximity between speech and danger – weighs the value of the speech against the likelihood of harm that the speech might cause

• Created proximity test b/n speech and danger

  • Not adopted but influenced Brandenburg v. Ohio

Schenck v US

• Clear and present danger test

• Speech ordinarily protected by First Amendment not protected when speech creates clear and present danger of substantive evils which Congress seeks to prevent 

  • Question of proximity and degree

  • Depends upon circumstances 

• Here, prosecution for circulating anti-war pamphlet under Espionage Act was upheld 

  • Actual obstruction of recruiting services for army during wartimes

  • Intended to make people obstruct draft

Debs v US

• Created "Effects Test"

• Speech not protected if speech has clear and probable effect to cause people to violate the law

• Here, Deb’s speech about socialism and praising those who resist the draft was a violating of the Act

  • Words used had clear and probably effect to obstruct army recruiting and had specific intent to do so

Bad Tendency Test (emergence of the Clear and Present Danger Test)

• Speech may be restricted if it has "any tendency to incite illegal activities, even if no immediate danger is present"

• Rare instance where academic affected the Court

  • Caused Holmes and Brandeis to change their mind about the development of "clear and present danger" and "effects" tests

Abrams v US

• Speech which would ordinarily be protected by 1st Amendment may be prohibited when used in such circumstances and is of such nature as to create a "clear and present danger of substantive evils" that Congress has a right to prevent

  • Very similar to Schenck and Debs cases BUT Holmes’ dissent makes this famous:

    • “The best test of speech is the marketplace of ideas”

      • Allow speech to compete rather than suppress it

  • Government may suppress such ONLY if high proximity of danger – virtually an IMMEDIATE threat

• Here, court upheld charges against those who distributed pamphlets against capitalism and to create disturbances against war

  • Even though the leaflets had no influence, the mere possibility of such a bad effect was sufficient

  • Those who did this intended to incite a revolution in the U.S. by defeating military plans

  • Must have intended and be accountable for the effects of their acts

Syndicalism Laws

Made it a crime for individuals or groups to advocate for radical political or economic change by criminal/violent means (overthrow government)

Gitlow v NY (SL)

• F: Gitlow convicted under SL for publishing a socialist manifesto to overthrow gov’t

• H: Court assumed free speech and press protections applied to states but held that Gitlow’s manifesto presented a sufficient tendency to incite dangerous action, even if no immediate harm was shown

• States can utilize police powers in regulating speech & press as long as not arbitrary or unreasonably exercised

• Analogy comparing revolutionary ideas to a spark that could ignite into a flame and eventually a destructive conflagration → emphasized the potential danger posed by speech that could escalate into widespread violence or unrest

Whitney v California (SL)

• F: Whitney was convicted under SL for her association w/ communist party

• H: Conviction upheld

• States can prohibit speech that creates clear and present danger of inciting crime, disturbing peace, or threatening overthrow of government

• Mere knowing membership in an organization advocating criminal syndicalism can be criminalized

• Overturned by Brandenburg

• Brandeis Theoretical Concurrence/Practical Dissent (makes case important):

  • Relevant test = clear and present danger

  • Link between free speech and democracy → impossible to have democracy without free speech

    • Appeal to fundamental rights

  • Free speech promotes democracy – people at least have a right to talk about/advocate for it or be in an organization that advocates it without fear of prosecution

  • Should require close proximity between speech and serious evil – wide difference between advocacy and incitement

Dennis v US (SL)

• F: Leaders of the Communist Party convicted for conspiring to advocate the violent overthrow U.S. government

• H: Upheld conviction

  • Courts must ask whether gravity of evil is discounted by its improbability

  • Must balance gravity of potential evil with probability of harm occurring to properly classify speech as a “clear and present danger”

  • Read Gitlow (“clear and present danger” language) into federal law

  • Defines clear and present danger

    • Cannot wait until last minute to restrict danger, too risky

• Here, mere existence of well-planned conspiracy satisfied the clear and present danger test so First Amendment was not violated by regulating this speech

Brandenburg v Ohio (SL modern test)

• F: Ku Klux Klan leader, gave a speech that included vague threats of violence against the government

  • He invited a tv reporter to a Klan rally, where anti-African American and anti-Semitic statements, along with calls for 'revengeance' were made

  • Convicted under Ohio’s criminal syndicalism law

• H: Ohio SL violated 1st and 14th amendments; conviction reversed

  • Statute punished mere advocacy of violence for political reform w/out any element of incitement to imminent lawless action

  • State may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”

  • Ultimate clear and present danger test

Brandenburg Test (Modern Test for prosecution of political speech)

For (political) speech to be unprotected by 1st amendment - Speech MUST be:

• (1) Directed to inciting or producing imminent or lawless action; and

  • Incorporates Learned Hand's Proximity Test (Masses Pub v Pattern)

  • Imminent defined by judge

• (2) Likely to incite or produce such action

  • Incorporates Holmes' "Clear and Present Danger" Test (Schenck v US)

  • The more the language repeated, more likely to incite/produce such action

Standard of Review for political speech

• STRUCT SCRUTINY

• Government may NOT suppress speech unless it has a compelling interest, and the regulation must be narrowly tailored to achieve that interest and there must not be any less restrictive alternative

Speech v Conduct

Purely Conduct → Expressive Conduct (O'Brien) → Speech through Conduct (Holder) → Speech

US v O’Brien (speech mixed w/ conduct

• F: O’Brien burned his draft card on the steps of a courthouse as a form of protest against the Vietnam War - was convicted under a federal law prohibiting destruction of draft cards - He argued that it was speech to protest the war, not conduct

• H: Upheld conviction - federal law does not violate 1st amendment

  • Created test to determine whether regulation of conduct that combines both speech and conduct is constitutional

  • Court had to determine if it was speech or conduct → INTERMEDIATE SCRUTINY

  • It was more conduct than speech → conduct is not generally protected by free speech

  • Govt has a legitimate interest in protecting draft cards to not destroy them

  • established a test to determine whether governmental regulation involving symbolic speech was justified

  • Statute was content-neutral

O’Brien Test to determine whether regulation of conduct that combines both speech and non-speech elements is constitutional:

• 1. Regulation must be within the constitutional power to enact

• 2. Regulation must further an important governmental interest

• 3. The interest must be unrelated to suppression of speech (must be “content neutral”)

• 4. The regulation must be no broader than necessary to achieve the interest

O’Brien and Brandenburg Test

If it involves Symbolic, Expressive conduct mixed with speech that also carries an incitement of violence or revolution then -> use O’Brien test to determine if conduct furthers speech, then use Brandenburg test to determine if the speech can be suppressed

Holder v Humanitarian Law Project

• F: HLP wanted to provide training and support to designated foreign terrorist organizations (FTOs) in nonviolent conflict resolution

  • Federal law (The Patriotic Act) prohibited "material support" to FTOs

  • Wanted to provide monetary contributions, legal training, and political advocacy

  • Concerned of criminal liability P wanted a declaratory judgment to know if want they are wanting to do is legal or not

  • P argued that the statute was too vague and infringed on their First and Fifth Amendment rights

• H: Upheld federal law - does not violate 1st amendment

  • Does NOT violate freedom of association bc statute required more than mere association – required giving support

  • Legislation that prohibits a private organization from providing humanitarian aid to international terrorist organizations does not violate the 1st Amendment bc Gov’t has a compelling interest in combating terrorism, and even peaceful support could legitimize or assist terrorist organizations

  • Mixture of speech and conduct

  • Conduct communicating message so STRICT SCRUTINY applied

    • Did not use O’Brien because it was a content-based restriction – prevented communication in certain ways with terrorist organizations

2 Facial challenges to legislation that restricts speech

1) Vagueness

• Person of ordinary intelligence would not be able to tell (or know in advance) what is forbidden or allowed

2) Overbreadth

• Regulations that ban not only some speech within the power of the government to proscribe, but also ban too much clearly protected speech

Coates v City of Cincinnati (Facial Challenges)

• ordinance prohibiting more than 3 people from assembling and engaging in “annoying” conduct on public property is unconstitutionally vague & over broad

  • Vague bc annoying can be defined differently

  • Overbroad bc it included conduct that can be prohibited but also include conduct that cannot be prohibited

Facial v As applied Challenges

• Facial Challenges → an attack on the face of the statute

• As Applied Challenges → under which P argues that a statute, even though generally constitutional, operates unconstitutionally as to their particular circumstances

• Analysis:

  • Is the statute facially valid? (On its face?)

    • If no - court doesn’t have to go further bc then the statute is unconstitutional

      • Ie overbroad, vague

    • If yes, court then looks at unconstitutional "as applied"

      • Under which P argues that a statute, even though generally constitutional, operates unconstitutionally as to their particular circumstances

Prior Restraints

• Gov’t CANNOT stop someone from speaking/publishing before they speak

  • Practically UNCONSTITUTIONAL PER SE – heavy presumption of unconstitutionality

• "Strangles speech before its even occurred"

• CANNOT prevent someone to speak before it occurs UNLESS compelling threat of national security

• Often arises in context of press

Near v Minnesota (PR)

• F: A Minnesota law allowed injunctions to prevent the publication of newspapers deemed "malicious, scandalous, and defamatory"

• H: Law is unconstitutional - violates 1st amendment freedom of speech and press

  • Injunction was prior restraint, which is unconstitutional

    • Bc there is other alternative remedies (ie defamation)

• “Troopship” exception: if imminent danger to life or national security, government CAN get injunction under prior restraint

NY Times v US (PR)

• F: Times stole report about war and planned to publish them (Pentagon Papers) and Nixon administration attempted to obtain injunction stopping them

• H: Unconstitutional prior restraint bc troopship exception not satisfied

• Threat to national security NOT large enough to justify injunction preventing publication since the papers were 2 years out of date and there was no threat to demoralize troops

• There was no real, imminent threat to human life or national security & therefore did not satisfy Troopship exception

Content Discrimination Legislation

• Gov’t banning specific topic of discussion

• STRICT SCRUTINY applies to legislation that bans the discussion of a specific topic (category) → must be supported by a compelling state interest pursued by narrowly tailored means

Viewpoint Discrimination Legislation

• Gov’t banning specific stance on specific topic

• STRICT SCRUTINY applies to legislation that bans the discussion of a specific stance–––must be supported by a compelling state interest pursued by narrowly tailored means

• Practically unconstitutional per se

• Strict in theory, but fatal in fact – Court is not likely to uphold a law that promotes viewpoint discrimination

Content Neutral Legislation

• legislation that is NOT aimed at content or viewpoint suppression

• INTERMEDIATE SCRUTINY–––substantially related means used to protect an important interest

• O’Brien - test to determine whether government regulation of conduct that combines both speech & non-speech is constitutional

Reed v Town of Gilbert

• H: Town’s harsher time-period restriction of “temporary directional signs relating to a qualifying event” versus other forms of temporary signs constituted CONTENT DISCRIMINATION and therefore subject to strict scrutiny

  • Town’s justification of aesthetic appeal and traffic management not enough to satisfy strict scrutiny

  • Content-based discrimination bc restrictions depended entirely on communicative content of signs

  • Content-based regulations CANNOT be justified as time, place and manner restriction

Shurtleff v City of Boston

• F: Boston allowed private groups to temporarily raise their flags at a public plaza in front of City Hall

  • Shurtleff applied to raise a Christian flag to prompt his group’s contributions

  • City denied saying that flying a religious flag would violate the establishment clause of the 1^st amendment

• H: By denying the Christian group’s request solely bc of the religious nature of its message - Boston engaged in viewpoint discrimination & violated the 1^st amendment’s free speech

  • Boston created a public forum where private individuals and groups could express their views

• Gov’t can NOT exclude speech based on its viewpoint in a public forum

  • Gov’t has the right to express its own messages BUT when it opens a forum for private speech, it cannot selectively exclude speech based on viewpoint

Time, Place and Manner

• Methods utilized to narrowly tailor legislation to promote govt’s compelling interests

  • Even when speech is constitutionally protected and undergoes strict scrutiny, gov’t MAY still impose reasonable time, place, and manner restrictions

    • Ex:

      • You can protest war, but a statute proscribing interference with free flow of traffic may be constitutional

      • You can hold rally in neighborhood, but a statute might limit that rally to daytime hours

• “You can sing at the capitol, but you can’t dance at the jail”

For regulation/legislation to be a valid time, place and manner restriction - MUST meet 3 criteria:

• 1) Be content-neutral:

  • Regulation must apply equally to all speech, regardless of its message

• 2) Serve a significant gov’t interest

• 3) Leave ample alternative channels:

  • Regulation MUST allow sufficient opportunities for individuals to communicate their messages

Edwards v SC

• Overturned convictions of civil rights demonstrators singing in front of the capital

Adderley v Florida

• Affirmed convictions of Civil Rights activists who protested incarceration of African Americans outside jail bc it interfered with jail’s ability to transport prisoners and other public functions

Infliction of Emotional Distress

• Mere embarrassment is not enough to prohibit the freedom of the press (Hustler Magazine)

• 1st Amendment protects speech on matters “of public concern” from civil liability, even if the speech is offensive or causes emotional distress, as long as it is conducted in a lawful manner and in a public forum (Snyder)

Hustler Magazine v Falwell

• mere embarrassment is not enough to prohibit the freedom of the press

• Right to parody in context of public figures – accept they will be target of criticism, humor, and attempts at humor

• To recover for IIED, public figures & officials MUST show that the publication contains a false statement made with “actual malice”

  • Public figure – individuals who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to the society at large”

  • Actual malice – with knowledge that the statement was false or with reckless disregard as to whether it was true

• Here - no indication of recklessness in evaluating truthfulness bc the parody was an obvious exaggeration meant to entertain or provoke rather than convey facts

• Court emphasized that the 1st Amendment protects satire and parody, even if it is offensive, bc such speech does NOT carry the risk of being interpreted as factual

Snyder v Phelps

• F: Westboro Baptist Church, led by Fred Phelps, picketed near the funeral of Marine Lance Corporal Matthew Snyder, who died in Iraq

  • The Church members carried signs w/ messages such as “Thank God for Dead Soldiers” & “Fags Doom Nations”

• H: Despite language on picketers’ signs, picketers NOT liable for IIED bc contents of signs related to US military and citizens and therefore were of public concern

  • Speech of public concern given GREATER protection – HIGH level of protection

    • Public concern → “fairly considered as relating to any other matter of political, social, or other concern to the community or when the subject of legitimate news interest”

  • Time, place, and manner of speech was permissible even if offensive

    • Not trespassing and had permit

    • Not visible/audible from funeral

    • Not directed to father or soldier

4 Categories of speech that is unprotected by 1st amendment

1) Defamation

2) Threats of Violence (True Threats)

3) Obscenity

4) Fighting Words

Treats of Violence (True Threats)

Threats are not protected if the speaker knowingly or recklessly disregarded a substantial risk that the statements would be reasonably be regarded as threats of violence

Counterman v Colorado

• F: Counterman was convicted w/ stalking after he repeatedly sent harassing & threatening messages to a Colorado musician

  • Statute does NOT require proof that D intended to cause fear or distress

  • ONLY that D's conduct caused a reasonable person to feel fear

  • The case hinged on whether this standard violated the 1st Amendment

• H: 1st Amendment requires gov't to show that the speaker had at least knowledge or reckless disregard of the harm caused by their speech

  • speech is highly protected under the 1st Amendment - including even speech that is harassing or offensive

  • True Threats are not protected under 1st Amendment - Bc they fall outside the scope of expressive speech

    • They are unlike speech that merely causes offense or annoyance

• Side not: Mens Rea requirement - recklessness will satisfy the element of knowledge for the mental state

Obscenity

• UNPROTECTED

• The gov’t CAN regulate it or ban it

• Material MUST meet all 3 parts of Miller Test to be legally obscene

• Sexually explicit material is NOT necessarily obscene unless it is also patently offensive and lacks serious value

• Art, literature, and scientific works that contain sexual content are usually protected

Miller v California

• F: Miller operated a mail-order business that sold sexually explicit materials

  • He mailed ads for four books and a film to unsolicited recipients

  • They included brochures w/ explicit images & descriptions

• Several people who received the brochures complained to the police

  • Miller convicted under CA statute that prohibited the distribution of obscene materials

• H: obscene materials do not have 1st amendment protection

  • Created 3 part test to determine if something is obscene (MUST meet all 3)

3 part Miller test - Must MEET all 3 for material to be obscene

• 1) Prurient Interest:

  • Whether the average person, applying contemporary community standards, finds that the work as a whole appeal to prurient interest (an excessive or unhealthy interest in sexual matters)

    • Community Standards should be used rather than a national standard

      • This allows for different interpretations of obscenity depending on the values of local communities

    • Does the material appeal to the average person’s interest in sex, based on community standards?

    • Taken as a whole intends to sexual stimulation rather than literary education

• 2) Patently Offensive

  • Whether the work depicts or describes sexual conduct in a way that is patently offensive, as specifically defined by applicable state law

    • Court has specified that explicit depictions of sexual conduct, masturbation, and lewd exhibition of genitals can be deemed patently offensive

    • Does the material depict sexual conduct in a manner that is clearly offensive, as defined by state law?

• 3) Lack of Serious Value:

  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

    • This is judged by a reasonable person standard

  • Does the material have any serious literary, artistic, political, or scientific value when considered in its entirety?

    • Literary value (e.g., books, poems, or plays with artistic merit)

    • Artistic value (e.g., paintings, sculptures, or films with meaningful expression)

    • Political value (e.g., speech, commentary, or satire related to social issues)

    • Scientific value (e.g., medical or educational content)

Stanley v Georgia (Private possession of obscene material)

• 1^st and 14^th amendment bar states from making private possession of obscene materials a crime

  • Bc the gov’t cannot regulate the private consumption of obscene materials in one’s home

• Can NOT be prosecuted for private possession of porn UNLESS it is child pornography

Child Pornography

• NY v Ferber - depictions of minors participating in sexual acts are NOT protected by 1^st Amendment

• Osborne v Ohio - Mere possession of child porn can be criminalized

  • Need to protect children is so compelling

  • If person possess porn, they have purchased it and enriched/enabled that child porn

• Ashcroft v Free Speech Coalition - virtual porn CANNOT be criminalized

  • No proximity because no actual children used and mere tendency it could encourage child exploitation NOT ENOUGH to justify prohibition

  • Mere tendency that it could encourage exploitation of children not enough to justify prohibition

  • Exception to Stanley

Indecent Speech

Lewd, filthy or disgusting words or pictures

Cohen v California (Indecent speech)

• F: Convicted for wearing jacket that said “F*** the Draft” while in a courthouse to testify

• H: Court overturned conviction bc 1st amendment protects speech, even if offensive

  • Not fighting words (not directed @ anyone) and unlikely to provoke violence

• Gov’t can NOT restrict speech solely bc it is offensive or vulgar

  • protection of free speech extends to expressive conduct that may be offensive to some but does not fall w/in exceptions to 1st Amendment protection

• The mere presumed presence of unwitting listeners or viewers does not serve to automatically justify curtailing all speech capable of being offensive

• Cannot avoid everything unless you choose to stay at home – can look away

  • Does NOT protect unduly sensitive people – look at it through lens of reasonable person

    • Not eggshell skulls but a reasonable person

• Political speech → STRICT SCRUTINY

Fighting Words

• Allows gov’t to limit speech when it is likely to incite immediate violence or retaliation (based on what men of common intelligence would likely cause an average addressee to fight) by the recipients of the words

• “Those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”

Chaplinsky v New Hampshire

• if ACTUAL VIOLENCE likely to occur as result of person’s speech their speech CAN be prohibited/sanctioned

  • D called person fascist and racketeer

  • Fighting words are not protected bc they cause direct harm or incite immediate violence

    • Gov’t can regulate speech when it directly provokes violence

Feiner v NY - Hostile Audiences

• Police may lawfully arrest individuals speaking to hostile audience as means of stepping in and regulating the situation to prevent riot when speaker’s words present clear and present danger

  • Tight proximity b/n speech and harm

Edwards v SC - Hostile Audiences

• F: Peaceful protest and assembly are constitutional protected

• H: if no imminent threat to public order, state may NOT suppress robust/rowdy speech

Hate Speech

• 1^st Amendment protects hate speech unless it falls into a recognized unprotected category (ie fighting words)

  • Less protective of hate speech than any other country

• Hate crimes may be punished more harshly under Constitution bc it is CONDUCT

  • but hate SPEECH cannot be subject to more scrutiny bc that constitutes content discrimination – which is impermissible absent any exception (defamation, obscenity, fighting words, true threats)

• Hate speech CAN be prohibited within traditional categories – ie fighting words and true threats

• Hate speech can NOT be content based and MUST be narrowly tailored

RAV v St. Paul

• Statute here focused only on fighting words directly implicating race, religion, or gender–––content discrimination b/c it could have banned all fighting words

• Even if an individual utters fighting words, which are usually unprotected, that individual’s message may nonetheless be PROTECTED if statute used to criminalize individual’s message is a form of CONTENT discrimination bc then statute is unconstitutional

• J. Blackmun’s concurrence: The gov’t cannot regulate subcategories of harmful speech without regulating all fighting words

Virginia v Black

Statute that made cross burning prima facie form of intimidation was overbroad bc it criminalized an action that could be used for another purpose (i.e., in movies or political speech), not related to intimidation

Symbols and Silence: Compelled Expression

1st Amendment protects both the right to speak and the right to remain silent

Minersville School District v Gobitis (Compelled Expression)

• Mandatory flag salute to instill patriotism into children is constitutional

  • Jehovah’s Witness beliefs were not as compelling as instilling patriotism into children

• Overruled by Barnette

West Virginia Board of Education v Barnette (Compelled Expression)

• Students cannot be forced to salute the flag

  • “1st Amendment cannot enforce unanimity of opinion on any topic”

• 1st Amendment protects individuals from compelled speech, even when the gov’t aims to promote national unity → STRICT SCRUTINY

  • There are other ways to achieve the goal of patriotism

Wooley v Maryland (Compelled Expression)

• Gov’t could NOT compel individuals to make certain statements via license plate that he/she did not agree with

  • People cannot be compelled to spread message they do not want to

• Gov’t cannot require citizens to “use their private property as a mobile billboard for the State’s ideological message”

  • individuals cannot be compelled to express government-endorsed messages

Boy Scouts of America v Dale (Compelled Expression)

• Boy Scouts could NOT be compelled to support message that didn’t align with their own beliefs – inherent right to select own members and leaders

• Voluntary organizations can choose who can/cannot be members bc of their freedom of association, BUT those rights are tempered by anti-discrimination laws

  • Interests must be weighed when the two conflict – balancing of interests is STRICT SCRUTINY

  • Foundational case: NAACP v Alabama -> State CANNOT compel membership lists of NAACP because of chilling effect on membership

    • Inherent right to gather in organization without undue burden from state

Rumsfeld v Forum for Academic and Institutional Rights (Compelled Expression)

• Federal law requiring schools receiving federal funding to allow military to conduct recruiting activities on their campus does NOT violate 1^st amendment rights bc it was the military recruiters speaking – NOT the school

  • w/holding certain funding for restricting access to military recruiters is constitutional

  • No compelled expression present

Symbolic Speech

Form of expression protected that conveys a message/idea without using spoken or written words. Includes actions, gestures, and symbols that communicate a particular viewpoint.

It is protected as long as it is intended to express a message and that message is likely to be understood by others and it does NOT involve illegal conduct

US v O’Brien (Symbolic Speech)

• Upheld conviction for burning draft card

• Court will not strike down a constitutional law on the basis of an alleged illicit legislative motive

  • Other ways to protest draft than burning draft card and to administer draft there must be draft cards

• O’Brien Test

  • Court decides that gov’t regulation is sufficiently justified if it is

    • w/in constitutional power of gov’t

    • Furthers important or substantial interest

    • Governmental interest is unrelated to suppression of free expression

    • incidental restriction on 1st amendment no greater than that is essential to furtherance of that interest

Texas v Johnson

• Struck down law prohibiting burning/destroying of American flags

  • statute unconstitutional AS APPLIED to Johnson, not facially unconstitutional

• Gov’t cannot prohibit expression simply bc the idea is offensive

• Limits O’Brien test to cases in which gov’t interest is unrelated to suppression of free expression

Commercial Speech

protected speech that consists of advertising or speech that proposes a commercial transaction

Valentine v Chrestensen & VA Pharmacy Case (Commercial speech)

Valentine - Held commercial speech had no constitutional protection

VA Pharmacy - OVERRULED Valentine and held that commercial speech receives constitutional protection

• state’s interest overbroad in prohibiting all advertisements to protect people from false and misleading advertisements

Bates v State Bar (Commercial Speech)

• flat ban on attorney advertising violates 1^st Amendment

  • Commercial speech, including lawyer advertising, has 1st Amendment protection

  • States cannot impose blanket bans on truthful and non-misleading advertising by attorneys

  • However, false, misleading, or deceptive advertising can still be regulated

Central Hudson (Commercial Speech)

• invalidated regulation that prohibited most forms of advertising by a utility corp.

• Existing law

  • 4-part test (memorize):

    • 1) Is the advertised activity lawful and not misleading?

    • 2) Is the asserted gov’t interest substantial? (triggers INTERMEDIATE SCRUNTINY – must be an important interest and the means must be substantially related to that interest)?

    • 3) Whether the regulation directly advances the gov’t interest asserted

    • 4) Whether it is not more extensive that necessary to serve that interest

Sorrell v IMS Health (ex of Hudson test - commercial speech)

• Laws that limit commercial speech based on content or speaker identity are unconstitutional unless they serve a compelling interest and are narrowly tailored

• Struck down law restricting pharmacies from providing manufacturers and data companies with records that revealed practices of doctors prescribing medicine

Public Forum Doctrine

• WHERE individuals have a constitutional RIGHT to speak

• Relevant when someone is prosecuted bc expression is not permitted on gov’t property OR someone sues seeking access to the property for expression

• Forum – any medium that can facilitate communication

• STRICT SCRUTINY applied to legislation restricting speech on public forum if no more specific test is applied

3 types of forums

• 1. Public Forum: space OPEN to people to discuss views/protest

  • Sidewalks, public parks, streets, etc.

  • HIGHEST claim to speech rights here

  • Still subject to time, place, and manner restrictions

• 2. Nonpublic Forum: areas of government property closed to public access for speech purposes (public place NOT open to public)

  • Rose Garden at the White House

  • Government may limit as long as limitations are REASONABLE and NOT based on viewpoint

• 3. Limited Public Forum: public forum that is NOT ORDINARILY open to the public, but the government may open it to the public if it chooses  

  • Auditorium in public university

US v Kokinda (public forum)

• upheld speech ban on post office sidewalk bc sidewalk was limited designated public forum designated for use by post office and it interfered with entry/exist

  • Content-neutral because it targeted many kinds of speech

Schneider v NJ (public forum)

• Court held purpose to keep streets clean and of good appearance is insufficient to justify these ordinances which prohibit people rightfully on public street from handing out literature

• Streets natural and proper places from dissemination of information and opinion

Ward v Rock Against Racism (public forum)

New York’s sound regulation for Central Park & use city provided sound equipment was a valid time, place, and manner restriction because it served the legitimate government interest in controlling noise levels while still allowing speech to occur

Frisby v Schultz (public forum)

• statute prohibiting pocketing in front of homes in town NOT unconstitutional because it was narrowly tailored and NOT form of viewpoint discrimination

  • Narrowly tailored – focused on protests occurring directly outside single residences

    • Narrowly tailored if it targets and eliminates NO MORE than exact source of evil it seeks to remedy

  • NOT viewpoint discrimination because it prohibited ALL speech in front of ALL homes throughout town

  • Street does NOT lose status as a traditional public forum just because it runs through neighborhood – STRICT SCRUTINY applies

McCullen v Coakley (public forum)

• statute prohibiting members of public from entering or remaining on public property within 35 feet of facilities where abortions were offered or performed was UNCONSTITUTIONAL bc it placed serious burdens on speech by depriving opponents opportunities to personally converse with clients of clinic and to distribute literature to them

  • Not content or viewpoint discrimination bc statute focused on LOCATION of speech

  • Had to be evaluated under time, place, and manner → NOT sufficiently tailored and therefore was UNCONSTITUTIONAL

Christian Legal Society v Martinez (public forum)

• public law school was free to condition official recognition of student group – and attendant use of school funds and facilities – on organization’s agreement to open eligibility for membership and leadership to all students

  • Exclusion of religious group from designated public forum was valid content regulation and NOT impermissible viewpoint discrimination

    • CAN discriminate based on content but NOT on viewpoint

  • Under the circumstances it was constitutional because school’s interest in maintaining neutrality in terms of membership among student organizations

Non-Public Forums

• Areas of government property closed to public access for speech purposes (public place NOT open to public)

  • Rose Garden at the White House

  • Government may limit as long as limitations are REASONABLE and NOT based on viewpoint

Adderley v FL (non-public forum)

• Civil rights activists protested at a jail entrance and were arrested for trespassing

• States have rights, similar to that of private owner, to preserve property under its control for use to which it is lawfully dedicated

  • Jail NOT public forum nor public place

Edwards v SC (non-public forum)

“You can sing at the capitol, but you can’t dance at the jail” 

• 187 black students peacefully protested at the SC state house against racial segregation, they were arrested for breach of peace when they refused to leave

  • the gov’t cannot criminalize peaceful protest in a public space simply because it is unpopular or causes discomfort to officials

Village of Stratton (public forum)

• Ohio passed an ordinance that required individuals to obtain a permit before going door-to-door to solicit or advocate for a cause

• Court struck down the ordinance bc requiring a permit for such speech burdens 1st Amendment rights to engage in speech, religious expression and peaceful advocacy

  • Court found no compelling government interest to justify such a restriction

IKSCON v Lee - What is public property?

• Ps sought to distribute literature and solicit donations inside an airport terminal & Port Authority had a rule that banned it in airport terminals for public order and safety

• Airports, though public spaces, are nontraditional public forums

  • They are not automatically open to all forms of expression, like streets and parks are

  • Applied time, place, and manner test → the airport rule was a content-neutral restriction

  • Rule was narrowly tailored to serve the airport’s interests

    • it did not outright ban all speech or religious expression but simply restricted it in certain areas and contexts

Marsh v Alabama - Company towns are public forums

• company towns are public forums despite being privately owned bc they function as public property with people living there, going to school there and shopping there

  • Companies cannot exclude speech from town even though it owns town bc the town acquired the character of public place

Robins v Pruneyard Shopping Center (public forum?)

• Federal gov’t does NOT recognize shopping centers as public forums

  • BUT some states recognize shopping centers as public forums (such as CA)

• HS students wanted to distribute political pamphlets at the privately owned mall

  • Mall owner prohibited expressive activities on the property bc it is private property and not a public forum and could restrict speech

• Court held that since state constitution granted broader free speech protections on certain private places opened to the public then they are required to allow free speech activities

  • ruling just based on CA’s state constitution - therefore ONLY applies to CA

Speech in limited environments

Situations where free speech rights are restricted due to the nature of the setting

• such as schools, military bases, prisons, workplaces, and nonpublic government property

• While 1st Amendment protects speech, it does not apply equally in all places

• Speech can be restricted if the regulation is reasonable and serves a legitimate purpose

  • such as maintaining order, security, or efficiency

  • However, restrictions can NOT be based on viewpoint discrimination

McAuliffe v Mayor of New Bedford (public employee)

• Historically, public employees had NO right to free speech

• Holmes stated everyone has right to free speech but not everyone has right to be policeman

  • policeman can express views as citizen, but if expressed in context of duties, he is speaking as police and NOT private citizen

    • “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

• Limited rights of free speech when you take public offices

Pickering v Board of Education (public employees)

• Pickering, a public school teacher, wrote a letter to a local newspaper criticizing the school board for how it allocated funds between academics and athletics

  • School fired him, arguing that his letter was damaging to the district

• Held: public employees do not lose their 1st Amendment rights when speaking as private citizens on matters of public concern

  • If a public employee speaks on a matter of public concern as a private citizen, their speech is PROTECTED

  • If the speech disrupts workplace efficiency or the employer’s ability to function, the government can regulate it

• Pickering test: Communications involving employee’s duties or matters of private concern are NOT protected free speech BUT matters of PUBLIC concern have constitutional protection

Connick v Myers (public employees)

• Myers, an assistant DA in New Orleans, was transferred to another department

  • disagreed with the transfer and circulated a questionnaire among her coworkers, asking about office morale and management

  • Her boss, Connick, fired her for insubordination

• Myers sued, claiming her firing violated her right to free speech

• Held: ruled against Myers

  • stating that her speech was NOT PROTECTED under the 1st Amendment bc it was mostly about a personal workplace grievance, not a public concern

  • If a public employee’s speech is about a matter of public concern, it may be protected (Pickering test applies)

    • If the speech is only about personal workplace issues, it is not protected

Garcetti v Ceballos (public employees)

• Ceballos, a deputy DA in Los Angeles, wrote a memo criticizing a police affidavit used in a case

  • He was demoted

  • He sued, arguing that his memo was protected speech under the 1st Amendment

• Held: ruled against Ceballos

  • Speech made as part of a public employee’s official job duties is NOT PROTECTED under the 1st Amendment

Rankin v McPherson (public employees)

• McPherson, a clerical employee in a Texas sheriff’s office, made a comment after hearing about an assassination attempt on President Ronald Reagan

  • She said: “If they go for him again, I hope they get him.”

    • & was fired → She sued, arguing that her right to free speech was violated

• H: Ruled in favor of McPherson - her political speech was protected bc

  • It was on a matter of public concern (political speech about the President)

  • She was a low-level employee, not in a policymaking or public-facing role

  • Her speech did not interfere with workplace efficiency or disrupt office operations

Speech in Public Schools

Students do not lose 1st Amendment rights, but speech can be regulated if it disrupts the educational mission

Tinker v Des Moines Independent Community School (public schools)

• Students have free speech rights unless it causes a substantial disruption

• F: 3 students wore black armbands to school to protest Vietnam War

  • School banned the armbands bc the caused disruption & suspended them

• H: Ruled in favor of students bc their silent, passive protest was protected speech

  • Students do not lose their 1st Amendment rights in schools

  • Speech is protected unless it causes a “substantial disruption” to the school environment or infringes on the rights of others

  • Symbolic speech (such as wearing armbands) is protected

  • First time court ruled there was free speech in public schools

Hazelwood School District v Kuhlmeier (public school)

• Students wrote articles for their school newspaper about teen pregnancy and the impact of divorce on students

  • Principal removed the articles before publication, claiming they were inappropriate and could invade students’ privacy

• H: Ruled against the students bc school had right to control the style and content of student speech in school’s newspapers (i.e., expressive activities)

  • Freedom of press CAN be limited in public schools

    • schools can exercise editorial control over school-sponsored speech as long as their actions are reasonably related to legitimate educational concerns → the school would have been the publisher

Tinker & Kuhlmeier Test for whether student can be disciplined for speech:

• 1. Whether the speech was disruptive or potentially disruptive; and

• 2. Whether the speech interfered with the pedological needs of school

NJ v TLO (public schools - 4th amendment)

• F: 14-year-old high school student was caught smoking in the school bathroom

  • school official searched her purse and found cigarettes, rolling papers, marijuana, and a list of students who owed her money

  • Charged w/ drug possession → argued search violated 4th Amendment rights of protection against unreasonable searches & seizures

• H: Ruled against student bc schools can conduct searches w/out a warrant or PC as long as they are reasonable

  • 4th amendment's protection against unreasonable searches and seizures is applicable to public schools, but in modified form - don’t need search warrants

    • Reasonable suspicion leading to high school officials' search of student's purse was sufficient not to offend 4th amendment

Morse v Frederick (public schools)

• F: Frederick, HS student, displayed a “BONG HITS 4 JESUS” banner at a school-supervised event

  • Principal told him to take it down, but he refused - was suspended

• H: Ruled against Frederick bc schools CAN restrict student speech that promotes illegal activities

  • School has an important interest in deterring drug use in school

Campaign Speech/Financing

Whether it’s an individual’s speech or the speech of a group, political candidate, or political party—is generally protected by the 1st Amendment, as it is considered essential to the democratic process

Buckley v Valeo (Campaign)

• F: Federal Election Campaign Act (FECA) placed limits on campaign contributions and spending

• H: Upheld limits on

  • individual contributions to political campaigns (arguing that excessive contributions could create the appearance of corruption)

    • Disclosure and reporting requirements

      • Anti-corruption interests – Americans should know where politicians are getting their money

    • Public financing

      • No longer in effect today but for many years there was an attachment to tax forms

      • Not unconstitutional for government to provide for public funds to be used for campaign to some extent

  • BUT struck down limits on certain things bc spending money on political campaigns is a form of speech, which is protected by the 1st Amendment

    • Campaign spending

    • Individual and group expenditures on behalf of candidates

    • Expenditures from candidate’s personal funds

Citizens United v Federal Election Commission (Campaign)

• F: Citizens United - nonprofit corp - produced a documentary titled Hillary: The Movie, which was critical of then-Senator Hillary Clinton

  • Under federal act, corporations were prohibited from using their general treasury funds for “electioneering communications,” ie ads referring to a candidate

• H: ruled that the act’s restrictions on corporate independent expenditures for political communications violated freedom of speech

  • used STRICT SCRUTINY bc political speech

  • gov’t may not suppress political speech by corporation solely bc speaker is a corporation

  • Corporations have right to free speech with regard to political campaigns

    • Corporation spoke through its funding of independent political broadcasts during election

  • Court rejected government’s rationales

    1. Anti-distortion? Allowing corporations to spend large expenditures could distort political process

       • Rejected because media corporation

    2. Corruption? Large spending creates corruption due to quid pro quo

       • Rejected because influence is not corruption

    3. Compelled expression? Money spent despite shareholders disagreeing

       • Rejected because corporate democracy

American Tradition Partnership Inc v Bullock (campaign)

• F: MN had a law that banned corporate political expenditures to prevent corruption in state elections

  • American Tradition Partnership (ATP) challenged the law, arguing that it violated Citizens United v. FEC (2010)

• H: Struck down the law

  • Citizens United applied to all states ie MN could not enforce a corporate spending ban

  • MN law was restricting rights rather than extending - UNCONSTITUTIONAL

    • Constitution is FLOOR and not a ceiling

Defamation

False statements that cause harm to someone’s reputation

• 3 types:

  • Libel – Written defamation (e.g., newspapers, social media posts, blogs)

  • Slander – Spoken defamation (e.g., TV broadcasts, speeches)

  • Defamation - Either oral OR written or BOTH or communicated by gesture