bodkins ch8: boundaries of the first amendment - unprotected speech

Which of the following laws would most likely be considered content-based under First Amendment analysis?

A law banning protests that criticize the government near schools

How does the Court distinguish content regulation?

Between what speech is regulated and how speech is regulated

What does content regulation introduce as central tools in First Amendment analysis?

Scrutiny tests: a judicial review standard used to determine if a government action or law violates constitutional rights.

Content regulation transitions from what to what?

From historical frameworks to doctrinal standards used today

What is the key idea in modern First Amendment cases?

Modern First Amendment cases often hinge less on “should speech be protected?” and more on “what kind of regulation is this?”

How is content-based regulation characterized?

High suspicion

How is content-neutral regulation characterized?

More flexibility

What do scrutiny tests determine?

If a regulation survives

In what cases are scrutiny tests used?

Nearly all modern free speech cases especially involving protests platforms advertising and national security

What is the definition of content-based laws?

Laws that regulate speech because of what it says its message subject matter or viewpoint

What are examples of a content-based law?

• Law banning anti-war protests

• Law requiring permits only for religious demonstrations

• Restrictions targeting specific viewpoints or topics

What scrutiny applies to content-based laws?

Subject to strict scrutiny

What must the government prove under strict scrutiny in content-based laws?

• law must be content based

• A compelling interest

• must be narrowly tailored

• must be the least restrictive means to achieve the desired outcome

What is the definition of content-neutral laws?

Laws that regulate the time place or manner of expression without regard to content

What are examples of content-neutral laws?

• Noise limits for concerts

• Parade permit requirements

• restrictions on blocking traffic

What scrutiny applies to content-neutral laws?

Subject to intermediate scrutiny

What must the government prove under intermediate scrutiny in content-neutral laws?

• law must be content- neutral

• A significant governmental interest

• must be narrowly tailored

• must leave ample alternative channels for speech

In content-based laws what is regulated?

Message subject or viewpoint

In content-neutral laws what is regulated?

Manner place or time

What is the government burden in content-based cases?

Strict scrutiny (compelling interest, narrowly tailored)

What is the government burden in content-neutral cases?

Intermediate scrutiny (significant interest, narrowly tailored, and alternative channels

What is the presumption for content-based laws?

Presumed unconstitutional

What is the presumption for content-neutral laws?

Presumed valid but reviewed carefully

What is an example of content-based regulation?

Banning specific viewpoints, political messages

What is an example of content-neutral regulation?

Noise ordinances, location rules

What is the key concern in content-based regulation?

Government favoring or disfavoring ideas

What is the key concern in content-neutral regulation?

Government managing logistics without discriminating

What are the requirements of the Strict Scrutiny Test?

The regulations MUST:

• Must be content-based

• serve a compelling government interest

• be narrowly tailored

• use the least restrictive means

How often does strict scrutiny survive?

Rarely survives as “strict in theory, fatal in ract” (presumed unconstitutional)

To what does strict scrutiny apply?

Content-based restrictions including viewpoint discrimination, political speech, religious speech, etc.

What are the requirements of the Intermediate Scrutiny Test?

Regulation MUST:

• Be content-neutral

• advance a significant government interest

• be narrowly tailored (not necessarily least restrictive)

• leave ample alternative channels for communication

What is the presumption under intermediate scrutiny?

Presumed valid

In what cases is intermediate scrutiny common?

Time place manner and commercial speech cases

What is the core concept of Police Department of Chicago v. Mosley (1972)?

content-based picketing band near school is unconstitutional

What does Police Department of Chicago v. Mosley (1972) matter?

It established that content discrimination triggers strict scrutiny

What is the R.A.V. v. City of St. Paul. (1992) core concept?

Viewpoint discrimination in hate speech ordinance

Why does R.A.V. v. City of St. Paul matter?

Even within unprotected categories government cannot discriminate by viewpoint

What is the core concept of United States v. Playboy Entertainment Group?

Regulation of cable sexual content struck down

What does United States v. Playboy Entertainment Group matter?

Reinforced that content-based speech restrictions rarely survive strict scrutiny

What is the core concept of Reed v. Town of Gilbert (2015)?

Sign ordinance targeting specific subjects

Why does Reed v. Town of Gilbert (2015) matter?

Reaffirmed bright line rule that any facial content based law gets strict scrutiny

What is the core concept of United States v. O’Brien (1968)?

Burning draft cards content-neutral regulation upheld

Why does United States v. O’Brien (1968) matter?

Created O’Brien test for expressive conduct

What is the core concept of Ward v. Rock Against Racism (1989)?

Upheld NYC sound regulations

Why does Ward v. Rock Against Racism (1989) matter?

Defined modern time place manner doctrine

What is the core concept of Hill v. Colorado (2000)?

Upheld buffer zones around clinics

Why does Hill v. Colorado (2000) matter?

Example of intermediate scrutiny applied to speech in sensitive locations

What is the core concept of McCullen v. Coakley (2014)?

Struck down larger buffer zones

Why does McCullen v. Coakley (2014) matter?

Reinforced tailoring requirement for content-neutral restrictions

What is the backbone of symbolic speech regulation?

The O’Brien test

What does the O’Brien test when talking about Symbolic Speech require?

• It is within the constitutional power of the government.

• Furthers an important or substantial government interest.

• The interest is unrelated to the suppression of free expression.

• The incidental restriction on First Amendment freedoms is no

greater than essential to further that interest.

What does the O’Brien test distinguish between?

It distinguishes between laws that regulate behavior (e.g., burning draft cards for administrative reasons) and those that regulate expression (e.g., banning flag burning because of the message).

What happens when the government interest is related to suppressing the message?

O’Brien test does not apply strict scrutiny does

ex. Texas v. Johnson (1989)

What were the facts in United States v. O’Brien?

Defendant burned his draft card during an anti-war protest

What was the issue in O’Brien?

Can the government punish illegal conduct that also has expressive meaning

What was the rule in O’Brien?

Government can regulate expressive conduct if it meets test requirements

What was the application in United States v. O’Brien(1968)?

If the government is regulating conduct for administrative or operational reasons, and speech is only incidentally affected, the government can intervene and intermediate scrutiny applies.

What was the conclusion in O’Brien?

Federal law prohibiting destruction of draft cards was constitutional

What were the facts in Texas v. Johnson?

Defendant burned an American flag during a political demonstration

What was the issue in Texas v. Johnson?

Does a Texas state law criminalizing flag desecration violate the First Amendment

What was the rule in Texas v. Johnson?

Government cannot prohibit expression because it finds the message offensive

What is the application in Texas v. Johnson (1989)?

Because the government interest was message related, intermediate scrutiny frameworks like O’Brien did not apply. Instead, strict scrutiny applied and Texas could not justify suppressing the expression.

What was the conclusion in Texas v. Johnson?

Texas law suppressed expression and violated the First Amendment

What is the doctrinal relationship between O’Brien and Johnson?

If government targets conduct for administrative reasons O’Brien applies if government targets the message strict scrutiny applies

How is commercial speech protected?

Protected but less than political speech

When is commercial speech protected?

Only if not false misleading or proposing illegal activity

What test evaluates commercial speech?

Central Hudson test

What questions are asked in Central Hudson?

Is the speech protected?

Is there a substantial government interest?

Does the regulation directly advance that interest ?

Is the regulation no more extensive than necessary?

Why is commercial speech not subject to strict scrutiny?

It is more hardy motivated by profit less likely to be chilled by regulation.

What legitimate regulatory interests justify regulation?

Consumer protection fraud prevention public health

What is the key idea about content-based advertising restrictions?

They can still trigger higher scrutiny if they discriminate by viewpoint

What is viewpoint discrimination?

The most egregious form of content-based regulation constitutional guardrail against state-controlled discourse

Where does viewpoint discrimination frequently arise?

Campus speech codes public library policies public funding decisions moderation mandates

What can government not do in viewpoint discrimination?

Favor one side of a debate

Is viewpoint discrimination allowed within unprotected categories?

No

What scrutiny applies to viewpoint discrimination?

Always strict scrutiny usually fatal

How does the content-based versus content-neutral framework apply to social media?

Applies to regulation of social media platforms moderation policies foreign-owned apps

What are courts grappling with in social media regulation?

How traditional First Amendment tests fit into this new landscape

How is content moderation characterized when regulated by the state?

Content-based because the state tells platforms what content they must allow or not remove

What do NetChoice cases illustrate?

State laws regulating content moderation often trigger content-based scrutiny

How are national security laws like PAFACA treated?

As content-neutral focusing on ownership control not specific speech content

What is the incitement doctrine under the First Amendment and what cases define it?

Defined in Schenck v. United States (1919) and Brandenburg v. Ohio (1969); current standard is the Imminent Lawless Action Test requiring intent and likelihood of inciting imminent illegal acts; government can punish advocacy only if it is intended and likely to produce imminent unlawful conduct

What are fighting words and how has the Court treated them?

Defined in Chaplinsky v. New Hampshire (1942) as personally abusive epithets likely to provoke immediate violent reaction; narrow category; rarely upheld today because the Court has significantly narrowed it

What is the obscenity doctrine and what test applies?

Addressed in Roth v. United States (1957) and Miller v. California (1973); Miller Test requires prurient interest patently offensive depiction and lack of serious literary artistic political or scientific value; obscenity is categorically unprotected but the test is demanding and many sexual materials are protected

What is the constitutional standard for defamation?

Established in New York Times v. Sullivan (1964); actual malice required for public officials; negligence standard for private figures in later cases; balances reputation interests versus press freedom and is central to modern libel law

What qualifies as a true threat under the First Amendment?

Defined in Virginia v. Black (2003) and Counterman v. Colorado (2023); speaker must intend or be reckless about the threatening nature of the speech; protects against genuine threats while safeguarding political hyperbole and ambiguous statements.

How is misleading commercial speech treated under the First Amendment?

Addressed in Virginia Pharmacy (1976) and Central Hudson (1980); Central Hudson Test applies; truthful commercial speech receives intermediate scrutiny; false or misleading commercial speech can be banned; commercial speech is protected but regulated less strictly than political speech

Why is child pornography categorically unprotected?

Held in New York v. Ferber (1982); categorically unprotected regardless of Miller test; protection of children outweighs expression interests and there is no serious value exception

How does the Court analyze symbolic conduct under the First Amendment?

U.S. v. O’Brien (1968) and Texas v. Johnson (1989); O’Brien Test applies if regulation targets conduct; strict scrutiny applies if regulation targets the message; distinguishes between regulating conduct versus expression and is central to flag burning and protest cases

What is viewpoint discrimination and how is it treated?

Defined in R.A.V. v. City of St. Paul (1992); strict scrutiny often per se invalid; even within unprotected categories the government cannot favor or disfavor viewpoints.