Mass Com. Law - 1st Amendment Cases

Schenck v. US (1919)

Rule: Speech that would ordinarily be protected may be restricted if it creates a "clear and present danger" of bringing about substantive evils that Congress has a right to prevent.

Debs v. U.S. (1919)

Rule: A speech intended to discourage military recruitment during wartime was not protected, even if the broader speech also discussed socialist ideology.

Frohwerk v. U.S. (1919)

Rule: The First Amendment does not grant absolute immunity to every form of speech, especially when it threatens national security.

Abrams v. U.S. (1919) (Holmes dissent)

Rule: Only speech that presents a present danger of immediate harm orintent to cause such harm can be restricted. (This dissent influenced later cases like Brandenburg.)

Gitlow v. New York (1925)

Rule: The government does not need to wait until revolutionary speech causes an actual disturbance before taking action against it. (This ruling was later narrowed by Brandenburg.)

Whitney v. California (1927) (Brandeis concurrence)

Rule: Speech can only be restricted under the clear and present danger test if the harm is so imminent that there is no opportunity for full discussion. The state, in exercising its police power, has the power to punish those who abuse their rights to freedom of speech "by utterances inimical to the public welfare,tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow."

Cantwell v. Connecticut (1940)

Rule: The state may restrict speech when there is a clear and presentdanger of riot, disorder, or an immediate threat to public safety.

Terminiello v. Chicago (1949)

Rule: Speech cannot be censored or punished unless it presents a clear and present danger of a serious substantive evil, not just public inconvenienceor unrest

Dennis v. U.S. (1951)

Rule: Courts must weigh the gravity of the evil against its likelihood indetermining whether speech restrictions are justified. (This test was laterlimited by Brandenburg.)

Brandenburg v. Ohio (1969)

Rule: The government cannot forbid advocacy of force or law violationunless it is directed at inciting imminent lawless action and is likely toproduce such action. (This replaced the Clear and Present Danger Test as the standard for incitement cases.)

Chaplinsky v. New Hampshire (1942)

Rule: Certain narrow categories of speech—lewd, obscene, profane, libelous, and fighting words—have never been considered protected under the First Amendment. Fighting words inflict injury or incite an immediate breach of the peace.

Feiner v. New York (1951)

Rule: If a speaker moves beyond persuasion into incitement to riot, law enforcement may intervene to prevent a breach of the peace

Forsyth County v. Nationalist Movement (1992)

Rule: The government cannot impose a financial burden on speech simply because it might offend a hostile audience.

Cohen v. California (1971)

Rule: A state cannot criminalize the mere public display of profanity (e.g.,wearing a jacket with an expletive).

U.S. v. O'Brien (1968) - Established the "O'Brien Test"

Rule: when speech and non-speech elements are combined, a government regulation is justified if: (1) it is within the constitutional power of the government, (2) it furthers an important or substantial government interest, (3) the interest is unrelated to the suppression of free expression, and (4) the incidental restriction on First Amendment freedoms is no greater than necessary.

Intermediate Scrutiny Test (IST)

Applies to non-content-based regulations.

What are two aspects of IST?

- Substantial Government Interest - The regulation must serve animportant or substantial governmental objective.

- Narrow Tailoring - The law must be substantially related to achievingthat interest. It cannot be broader than necessary, but it does not haveto be the least restrictive means.

Texas v. Johnson (1989)

Rule: The government has more latitude in restricting expressive conduct than it does with written or spoken speech, but it cannot prohibit conduct solely due to its expressive nature.

Scrict Scrutiny Test (SST)

Applies to content-based regulations

Under strict scrutiny, a law restricting speech must:

1. Serve a compelling governmental interest

2. Be narrowly tailored to achieve that interest

3. Be the least restrictive means of achieving that interest

Barnes v. Glen Theatre, Inc. (1991)

Rule: Nude dancing in adult entertainment venues is considered expressive conduct, but the protection under the First Amendment is limited, allowing forregulations like public indecency laws when they are justified by government interests. The Court ruled that the law was constitutional, applying intermediate scrutiny under the U.S. v. O'Brien (1968) test.

Beauharnais v. Illinois (1952)

Rule: The Court upheld an Illinois group libel law, ruling that a statemay prohibit false or malicious defamation of racial or religious groups when it poses a significant risk of inciting unrest. The ruling suggests that group libel can be outside First Amendment protection but does not establish a general test. Note, this decision has been largely undermined by later cases that provide stronger protections for offensive speech.

R.A.V. v. City of St. Paul (1992)

Rule: The Court ruled that even within categories of unprotected speech,the government cannot engage in viewpoint discrimination unless the restriction is justified without reference to the speech's content (such as when speech produces secondary effects). This case clarified that content-based restrictions within proscribable speech must be narrowly tailored but did not create a broad First Amendment test.

Virginia v. Black (2003)

Rule: The Court ruled that cross burning can be prohibited when done with the intent to intimidate. However, a statutory presumption that all cross burnings are inherently intimidating was unconstitutional. The decision established that intent to intimidate must be proven separately, rather than presumed, but did not introduce a sweeping test.

Snyder v. Phelps (2011)

Rule: The Court held that the First Amendment can serve as a defense instate tort claims, including intentional infliction of emotional distress.Whether speech is protected depends on whether it addresses matters of public or private concern, based on the content, form, and context of thespeech. This case introduced a public/private concern test, emphasizing thatspeech on public issues receives stronger constitutional protection.

Roth v. U.S. (1957)

Rule: Obscenity is not protected under the First Amendment, as it does notcontribute to the exchange of ideas and has no essential social value.

Miller v. California (1973) - Established the "Miller Test"

Rule: To determine obscenity, courts consider: (1) whether an average person, applying contemporary community standards, would find that thework appeals to prurient interest

(2) whether the work depicts or describes sexual conduct in a patently offensive way

and (3), whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (SLAPS).

New York v. Ferber (1982)

Rule: States may regulate child pornography more strictly than obscenity because of the unique harm caused by its production and distribution. The Miller standard is insufficient for addressing child pornography. The Court distinguished child pornography from obscenity and held that states could ban its distribution regardless of whether the material met the obscenity test in Miller v. California

Paris Adult Theatre I v. Slaton (1973)

Rule: States have a legitimate interest in regulating the distribution and exhibition of obscene materials, even in places catering exclusively to consenting adults.

American Booksellers Association, Inc. v. Hudnut (1985)

Rule: A law that mandates an "approved" view of gender and sexuality and restricts contrary perspectives violates the First Amendment, as government cannot prescribe ideological viewpoints.

Reno v. ACLU (1997)

Rule: While the government has an interest in protecting children from harmful materials online, broad censorship that suppresses protected speech for adults is unconstitutional unless less restrictive alternatives are ineffective.

Ashcroft v. ACLU I (2002)

Rule: A law using community standards to define material harmful tominors does not automatically violate the First Amendment, but its overbreadth must be examined

Ashcroft v. ACLU II (2004)

Rule: The government failed to prove that content filtering and blocking software would be insufficient as a less restrictive alternative to direct regulation of online speech

New York Times Co. v. Sullivan (1964) - Establishes "Actual Malice" Test

Rule: A public official cannot recover damages for defamatory falsehoods related to their official conduct unless they can prove that the statement was made with "actual malice," meaning with knowledge of its falsity or with reckless disregard for the truth. This ruling established the actual malice standard, The ruling established the actual malice test for public officials, meaning that to win a defamation lawsuit, public officials must prove that the defamatory statement was made with knowledge of its falsity or with reckless disregard for the truth.

Curtis Publishing Co. v. Butts (1967)

Rule: A public figure who is not a public official can recover damages for defamatory falsehoods if they show that the publisher engaged inhighly unreasonable conduct, constituting an extreme departure from ordinary standards of investigation and reporting. While the Court did not extend the New York Times actual malice standard directly, Justice Warren's concurrence suggested applying that same test

Gertz v. Robert Welch, Inc. (1974)

Rule: States have the authority to define the standard of liability for defamation involving private individuals, so long as liability is not imposed without fault. The Court held that private individuals need not meet the actual malice standard, but states may impose a lower threshold for damages ifthere is no proof of fault.

U.S. v. Alvarez (2012)

Rule: The Court ruled that there is no general exception to the First Amendment for false statements, reinforcing the principle that falsehoods, while not protected under all circumstances, are inevitable in a free and open society. The ruling affirmed that the First Amendment protects the expression of false statements unless they meet specific exceptions, such as fraud or defamation involving private individuals under certain standards.

West Virginia State Board of Education v. Barnette (1943)

Rule: The Supreme Court ruled that compelling students to salute the flagand pledge allegiance violated the First Amendment, emphasizing that individuals cannot be forced to express beliefs contrary to their conscience. This case is significant as it establishes the principle that government cannot compel speech, even in a school setting.

Tinker v. Des Moines Independent Community School District (1969) -Established "Tinker Test"

Rule: The Court held that students retain their First Amendment rights in school, provided their speech does not "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school" or infringe upon the rights of others. This ruling established the "Tinker Test," which requires a disruption or interference with the educational environment for schools to justify restrictions on student speech.

Hazelwood School District v. Kuhlmeier (1988)

Rule: Schools can exercise editorial control over student speech in school-sponsored activities, such as school newspapers, if their actions are reasonably related to legitimate educational concerns. This case introduced a more deferential standard for student speech in certain school contexts.

Morse v. Frederick (2007)

Rule: The Court upheld a school principal's decision to restrict student speech at a school event, ruling that the First Amendment does not protect speech that is reasonably interpreted as promoting illegal drug use. This ruling allows schools to limit student speech that advocates for illegal conduct.

FCC v. League of Women Voters (1984)

Rule: The Supreme Court held that a broad ban on all editorializing by broadcast stations that receive public funds was unconstitutional. The Court ruled that such a ban exceeded what was necessary to protect against government interference or to prevent the public from mistakenly assuming that editorials by public broadcasters represented the government's official views. The government cannot broadly restrict speech if it is not necessary to avoid misrepresentation or interference with public broadcasting.

Rust v. Sullivan (1991)

Rule: The Court upheld the government's ability to favor childbirth overabortion by restricting the use of federal funds for abortion-related activities. The Court found that this did not constitute viewpoint discrimination because the government, in its role as a funder, was entitled to allocate resources according to its policy preferences.

Legal Services Corp. v. Velazquez (2001)

Rule: The Court held that viewpoint-based restrictions on government funding cannot be imposed unless the government is using private speakers to advance its own agenda. In this case, limiting funding for legal services based on viewpoints was found unconstitutional because the government was not directly speaking but funding private organizations. Viewpoint restrictions in public funding are unconstitutional when the government is not speaking or controlling the message directly.

National Endowment for the Arts v. Finley (1998)

Rule: The Court ruled that Congress has wide discretion in setting priorities for government funding, and the First Amendment does not impose strict limits on its decision-making in funding programs. Test: The government, acting as a patron rather than a sovereign, has broad latitude in determining how to allocate funding, including setting conditions on that funding.

Red Lion Broadcasting Co., Inc. v. FCC (1969)

Rule: The Court held that the First Amendment's primary concern is the protection of the public's right to access a diversity of ideas, not the broadcasters' rights. The decision emphasized that government regulation could be justified to promote this marketplace of ideas. The right of the audience and listeners to access diverse viewpoints takes precedence over broadcasters' rights to control the content.

Pleasant Grove City v. Summum (2009)

Rule: The Court ruled that the placement of a permanent monument in a public park is considered government speech, which is not subject to First Amendment scrutiny. When the government is acting as the speaker, its decisions are not constrained by the First Amendment's free speech protections.

Pickering v. Board of Education (1968)

Rule: The Court found that a public employee's speech on matters of public concern is protected by the First Amendment, even if the speech is false, as long as it does not interfere with the efficient operation of the government or disrupt the employer-employee relationship. Speech on matters of public concern by a public employee is protected unless it significantly disrupts the operation of the employer's duties.

Givhan v. Western Line Consolidated School District (1979)

Rule: The Court ruled that a public employee's First Amendment rights are not forfeited if they choose to communicate privately with their employer about issues of public concern. Public employees retain First Amendment protection even when their speech is communicated privately to their employer.

Connick v. Myers (1983)

Rule: The Court held that when a public employee speaks solely on matters of personal interest, the government can take action against the employee without violating their First Amendment rights. The First Amendment does not protect speech by public employees on matters of personal interest that do not address issues of public concern.

Garcetti v. Ceballos (2006)

Rule: The Court ruled that public employees do not have First Amendment protection when speaking as part of their official duties. Public employees are not protected under the First Amendment when speaking as part of their job responsibilities.

Lane v. Franks (2014)

Rule: The Court ruled that a public employee's sworn testimony, when given outside the scope of their ordinary duties, is entitled to First Amendment protection. Speech outside of the scope of a public employee's official duties, such as sworn testimony in court, is protected by the First Amendment.

Heffernan v. City of Paterson (2016)

Rule: The Court ruled that a public employee who is demoted due to the employer's desire to prevent them from engaging in protected political activity is entitled to challenge the action under the First Amendment. Test: An employee may challenge an adverse employment action if the employer's motive was to suppress political speech, even if the employee did not engage in the speech.

Ward v. Rock Against Racism (1989)

Rule: The Supreme Court upheld New York City's regulation requiring performers at a public band shell to use city-provided sound equipment and technicians to control noise levels. The Court applied the time, place, and manner test, ruling that the restriction was content-neutral, served a significant governmental interest in limiting excessive noise, and left open alternative means of communication.

Rosenberger v. Rector and Visitors of the University of Virginia (1995)

Rule: The Court struck down a university policy that denied funding to astudent religious publication while providing funds to secular student groups. The ruling emphasized that content discrimination may be permissible when preserving the forum's purpose, but viewpoint discrimination is unconstitutional when directed against speech that otherwise falls within the forum's limits.

Public Forums

Government regulations on speech in public forums must adhere to a three-part test for time, place, and manner restrictions. These restrictions must:

(1) be content-neutral

(2) be narrowly tailored to serve a significant governmental interest

(3)leave open ample alternative channels for communication.

In designated public forums,the government may impose content-based restrictions to maintain the forum's intendedpurpose but cannot engage in viewpoint discrimination, which is presumptivelyunconstitutional

Government Speech

Constitutional free speech protections do not apply to government speech, which caninclude publicly funded private speech. While government employees retain free speech rights when speaking as private citizens on matters of public concern, these rights do not extend when they are acting as employees on matters of personal interest.

Public Schools

Constitutional free speech protections do not apply to government speech, which can include publicly funded private speech. While government employees retain free speech rights when speaking as private citizens on matters of public concern, these rights do not extend when they are acting as employees on matters of personal interest.

Libel

Public officials or figures bringing libel claims must demonstrate a higher level of fault to overcome First Amendment protections, requiring proof of actual malice in most cases. Private individuals, on the other hand, typically only need to meet the standard established by state law

Hate Speech

There is no categorical First Amendment exception for hate speech, as it is generally considered a form of political speech. The Supreme Court has recognized that even offensive or hurtful speech on public issues must be protected to prevent the suppression of public debate; however, certain targeted regulations may be upheld under specific circumstances.

Obscenity

The First Amendment does not protect obscenity or child pornography, but defining what constitutes obscenity has been a matter of legal scrutiny. The Millertest (Miller v. California, 1973) established a three-part standard for determining obscenity, while later cases clarified the government's role in restricting access to explicit material, especially when children are involved.

Expressive Conduct

Expressive conduct, often referred to as symbolic speech, can be protected under the First Amendment, though a more lenient standard of intermediate scrutiny may apply in such cases, balancing government interests and free expression.

Incitement and Fighting Words

While the First Amendment broadly protects speech, the government may prohibit speech that is directed at inciting or producing imminent unlawful conduct and is likely to incite or produce it. Additionally, the First Amendment does not protect fighting words that, by their utterance, cause injury or provoke an immediate breach of the peace.