COMM 171: STUDY GUIDE

Public Forum Doctrine

Public sidewalks and streets are a traditional public forum. Private Property is not protected as a public forum, and owners can restrict speech or remove people.

Hauroms:

• Private Homes

• Apartment Complexes

• Private Universities

• Restaurants

• Office Buildings

• Shopping Malls

• Stores like Target or Walmart

Content Base v. Content Neutral

Content Base: The government looks at the words or idea and decides id the specific message is allowed.

Content Neutral: The government treats all the messages the same and focuses on something other than the message itself, like where, when, and how they speak.

Offensive Speech

The government cannot punish racist, anti-semtic, offensive, hateful, or prejudice speech. The First Amendment does not protect TIHF.

• True threats

• Incitement

• Harassment

• Fighting words

Narrow Tailoring

The government must choose a solution that addresses the problem without restricting more speech than necessary.

Strict Scrutiny v. Intermediate Scrutiny

Strict Scrutiny: The rule must show that it has a very important reason for the rule and that the rule is only as big as it needs to be to solve the problem.

Intermediate Scrutiny: The government must show that it has an important reason for the rule and that the rule is closely connect to achieving that reason.

Strict Scrutiny: A law that treats people differently because of their race.

Intermediate Scrutiny: A law that treats people differently because of their sex (male or female).

Snyder v. Phelps (2011): Supreme Court

Facts:
The Westboro Baptist Church picketed a soldier's funeral with signs reading “God Hates Fags,” “Thank God for Dead Soldiers,” and “America is Doomed.” The signs were extremely offensive and emotionally devastating to the soldier's father. The protest took place on public land, about 1,000 feet away from the funeral, and was conducted peacefully without violence or profanity. The father sued for emotional distress.

Holding:
The Supreme Court held that the speech was protected by the First Amendment. Westboro won and the father lost.

Reasoning:
The Court found that the speech addressed matters of public concern, including public morality, politics, religion, and national policy. Speech involving public issues receives the highest level of First Amendment protection, even when the speech is outrageous or deeply offensive.

McCullen v. Coakley (2014): Supreme Court

Facts:
Massachusetts established a 35-foot buffer zone around abortion clinics. Pro-life sidewalk counselors argued the law prevented personal conversations with women entering the clinics. The issue was whether the buffer zone violated the First Amendment.

Holding:
The Supreme Court held the law was unconstitutional. McCullen won and Massachusetts lost.

Reasoning:
The law was content-neutral because enforcement depended on where a person stood, not what they said. A person could violate the law by standing within the buffer zone, even silently. The law failed intermediate scrutiny because it was not narrowly tailored. Massachusetts burdened more speech than necessary and had less restrictive alternatives available, including obstruction laws, harassment laws, police enforcement, and targeted injunctions. The state used broad speech restriction instead of using those alternatives.

Hill v. Colorado (2000): Supreme Court

Facts:
Colorado created an 8-foot no-approach zone around individuals within 100 feet of abortion clinic entrances. Anti-abortion protestors and sidewalk counselors argued the law violated their First Amendment rights because it prevented close conversations and leafletting on public sidewalks. Colorado argued the law protected patient access, reduced harassment, improved safety, and prevented congestion near clinics. The issue was whether the law violated free speech rights.

Holding:
The Supreme Court upheld the law. Colorado won and the protestors lost.

Reasoning:
The Court applied intermediate scrutiny and held that the law was constitutional. The decision allowed content-neutral protections around abortion clinics and was later used by courts to support similar clinic-access regulations.

Brown v. Entertainment Merchants Association (2011): Supreme Court

Facts:
California banned the sale of violent video games to minors. The issue was whether the law violated the First Amendment.

Holding:
The Supreme Court held that video games are protected speech. California lost.

Reasoning:
The Court applied strict scrutiny and held that the law was unconstitutional. Violence is not obscenity, video games communicate ideas and messages, and the government cannot create a new category of unprotected speech. The government cannot invent new First Amendment exceptions simply because speech is disturbing.

United States v. Stevens (2010): Supreme Court

Facts:
Congress passed a federal law making it illegal to create, sell, or possess certain depictions of animal cruelty. The law targeted materials such as dogfighting videos and “crush videos” involving animal torture. Robert Stevens wrote books about pit bulls and sold videos showing dogfights and animal attacks. He was prosecuted under the federal law.

Holding:
The Supreme Court held that the law was unconstitutional. Stevens won and the federal government lost.

Reasoning:
The Court applied strict scrutiny and rejected the idea that the government can create new categories of unprotected speech. The Court stated that it does not have “freewheeling authority” to invent new exceptions to the First Amendment.

Branzburg v. Hayes (1972)

Facts:

Reporter Paul Branzburg wrote newspaper articles about individuals manufacturing hashish and using illegal drugs. After publication, grand juries subpoenaed Branzburg and other reporters, seeking testimony about criminal activity they had observed and the identities of those involved. The reporters refused, arguing that the First Amendment protected confidential newsgathering relationships.

Holding:

The Supreme Court held that reporters do not have a First Amendment privilege to refuse to testify before a grand jury. The government won, and Branzburg lost.

Reasoning:

The Court ruled that journalists have the same obligation as other citizens to provide relevant testimony in criminal investigations. While freedom of the press is important, the First Amendment does not exempt reporters from generally applicable laws requiring citizens to testify. The Court declined to create a special constitutional privilege for journalists.

Center for Bio-Ethical Reform v. Los Angeles County Sheriff (2008): 9th cir

Facts:

An anti-abortion organization drove a truck displaying large photographs of aborted fetuses around the perimeter of a middle school before classes began. Some students became upset, traffic was disrupted, and school activities were affected. Law enforcement ordered the truck to leave the area.

Holding:

The Ninth Circuit held that the anti-abortion group's speech was protected. The Center for Bio-Ethical Reform won, and the county lost.

Reasoning:

The Court emphasized that offensive or disturbing speech in a public forum remains protected by the First Amendment. The government may not suppress speech simply because listeners, including children, find it upsetting. Public sidewalks are traditional public forums, and restrictions based on the content of speech receive the highest level of constitutional scrutiny.

St. John’s Church in the Wilderness v. Scott

Facts:

Anti-abortion protestors displayed large graphic images of aborted fetuses outside a church during Palm Sunday services. Many children attending the service saw the images and became upset. A court order prohibited the display of gruesome images likely to be viewed by children under twelve attending worship services.

Holding:

The Colorado Court of Appeals held that the restriction was unconstitutional. The protestors won, and the church lost.

Reasoning:

The court found that the restriction was content-based because it specifically targeted certain images based on their message and content. Because the regulation targeted speech in a traditional public forum, strict scrutiny applied. The government could not suppress protected speech simply to shield children from disturbing images.

Balco Case (2006)

Facts:

San Francisco Chronicle reporters published leaked grand jury testimony concerning steroid use by professional athletes connected to BALCO. Federal prosecutors subpoenaed the reporters and demanded that they reveal their confidential sources.

Holding:

The reporters could be compelled to testify and faced possible jail time for refusing to identify their sources.

Reasoning:

The court relied on Branzburg v. Hayes, which held that reporters do not have a First Amendment privilege to refuse grand jury subpoenas. Journalists generally have the same obligation as other citizens to provide evidence relevant to criminal investigations.