First Amendment

Incitement

Speech directed to inducing others to engage in illegal conduct

Brandenburg

State may punish incitement only “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Speech must be

1. a)   “Directed to inciting or producing” (direct incitement)

2. b)    “Imminent lawless conduct”

3. c)     “And is likely to incite or produce such action”

True Threats

Threats are a statement indicating a serious intent to commit a harmful and illegal act against another.

1. Recklessness Standard

a)     Even if a true threat exists, the speaker can held liable for issuing it only if it is proven that speaker acted recklessly.

Fighting Words

“Fighting words” are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace”

1. A speaker who utters fighting words may be punished without any proof that the words created a “clear and present danger” of violence or other social harm

   1. No clear test; context specific

   2. a)     Must risk violent retaliation by a reasonable personx

Libel

A public figure may not recover for libel or defamation for speech regarding his official conduct unless he can prove:

1. The speech was false;

2. The speech was directed against him personally (criticism of the government is not a criticism of officials); and

3. The speech was made with “actual malice,” meaning that it was made with knowledge or reckless disregard of the truth

General Purpose Public Figures

Those who “occupy positions of such pervasive game or notoriety that they are deemed public figures for all purposes.”

Special Purpose Public Figures

“More commonly, those classed as public figures have voluntarily thrust themselves to the forefront of particular public controversies and becomes a public figure for a limited range of issues.”

Libel Standard for non-public officials/non-public figures (standard for everyone else)

1. It is up to the states, but there must be fault. So the minimum standard is negligence.

2. When a defamation action does involve speech on a matter of public concern, even private plaintiffs bear the burden of proof to show that the speech contain falsehoods

Tortious Speech: IIED

1. Speech may not be subject to liability for intentional infliction of emotional distress IF the speech is on a matter of public concern

   1. Speech is on a matter of public concern if it is speech which can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and value and concern to the public.

2. A public figure who sues for IIED based on wounding speech must satisfy the Sullivan standard and prove:

   1. Falsehood, and

   2. Actual malice

Tortious Speech: Privacy

1. This involves speech that is true.

2. Information learned from public records or legally is considered a matter of public concern and is therefore protected from invasion of privacy challenges.

   1. , the press has never been liable for publishing truthful, legally obtained information.

Obscenity

Speech is obscene and unprotected depending on whether

1. The average person, applying a contemporary community standard, would find that the work, taken as a whole, appeals to the prurient (having or encouraging an excessive interest in sexual matters) interest.

2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

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

• One can possess obscene materials in their own home.

• Obscene materials in a public setting, even with no children and a consenting audience, can be considered obscene

Swear Words/Profanity

a)     Profanity can be protected because it is a means of expressing emotion, and emotive content should be protected like ideas

(1)   Additionally, curse words not directed at someone are not fighting words

b)     However, offensive/indecent speech on broadcast is not protected.  Internet and cable television receive full First Amendment protection, not the lower standard of broadcast.

c)     Non-obscene nudity is protected in the same way as profane language. Just because it causes offense is not sufficient to prohibit protected speech in public places

Child Pornography

Child pornography is unprotecten, even private possession of child pornography is not allowed because otherwise it would still be difficult to root out abuse.

1. On the other hand sexual conduct of people who appear to be minors but who are not is protected by the First Amendment (if they are young looking adults or if it is computer generated)

2. However, distributing materials with the belief or with the intent to cause another to believe that the materials are child pornography can be punished, even if the materials are not child pornography

New Categories of Unprotected Speech

New categories of unprotected speech can only be recognized if they were historically unprotected.

Lies

Regulations of false speech (that does not harm) must pass intermediate scrutiny.

(1)   The law must target a “specific harm” and the law is reasonably tailored to prevent that harm

(a)   Maybe a less restrictive alternative is requiring knowledge of falsity

(2)   However, some lower courts have applied strict scrutiny to false political speech, distinguishing the Breyer opinion.

b)    Laws against perjury and fraud are ok because the falsehood causes a legally cognizable harm

Prior Restraints

Prior restraints on printing and distributing (and other speech) are presumptively unconstitutional.

When might a prior restraint be constitutional? (Freedman Rule)

Such a law is permissible only if the following requirements are met:

a)     Any restraint must be for a brief period during which the status quo is maintained

b)    Expeditious judicial review of any denial must be available

c)     The censor must bear the burden of going to court and the burden of proof in court to suppress the speech.

 BUT The Freedman rule does not apply to a permitting system controlling access to public land that:

(1)   Is content-neutral,

(2)   Creates clear rules,

(3)   And does not leave excess discretion in the hands of public officials

Prior Restraint, Judicial Injuncitons

The strong presumption against prior restraints extends to judicial injunctions suppressing speech before it is uttered or published.

But when might an injunction be ok?

a)     When there is a compelling governmental interest

(1)   National security

(a)   Maybe troop movements, locations, amounts, e.g.

(2)   Unprotected speech - though this is unclear and unsettled

(3)   Private rights, e.g. defamation of private figures

(a)   States are split on this

Overbreadth

1. Statutes regulating speech are invalid if they are substantially overbroad, meaning that they reach a “substantial number of impermissible applications”

2. Later cases appear to support the comparative approach: for a law to be facially unconstitutional, invalid applications must be substantial in comparison to valid applications.

note: does not apply to commercial speech

Vaugeness

1. The Due Process Clause forbids enforcement of statutes that are so vague that they do not give fair notice of what conduct they forbid

1. Vagueness is applied with special force when statutes regulate speech

2. The concern is that vague laws will chill speech, and lead to selective enforcement

Content Based Analysis

 law is content based if:

1. If is facially content based OR

2. If it cannot be justified without reference to the content of the regulated speech (i.e. the government’s purpose was to burden specific content) OR

3. If regulation is triggered by the communicative impact of speech (e.g., because the speech causes “offense”)

Strict scrutiny

The law will be upheld only if the government can prove that it is “narrowly tailored to serve compelling state interests”

a)     Including over- and underinclusiveness

b)    Speech may be underinclusive -> i.e., fails to regulate other speech which threatens the same harms

c)     Speech may be overinclusive -> i.e., regulates speech which does not really threaten the relevant social harm

Expressive Conduct & When its Acceptable

Conduct is expressive if:

1. It is intended by the person acting to convey a message

2. And the message is directed at an audience which is likely to understand the message

Regulation of expressive conduct will be upheld if (intermediate scrutiny):

1. It is within the constitutional power of the government

2. It furthers an important or substantial governmental interest

3. The government interest is unrelated to the suppression of free expression

a)     Essentially means that the law must be content-neutral

Ward or O’Brien test

1. Court typically applies Ward for content-neutral regulations to laws directly regulating speech or regulating conduct closely associated with speech (marching, picketing, leafleting, etc.)

1. Court typically applies O’Brien test for expressive conduct to laws regulating conduct not necessarily expressive in nature, but which in the case at issue was engaged in for expressive reasons

Secondary Effects Doctrine

1. If a law is content-based, it may still be treated as content-neutral if the law is only aimed at the secondary effects of the speech in question

In that case, intermediate scrutiny applies

a)     O’Brien intermediate scrutiny

O’Brien intermediate scrutiny

1. Within government’s constitutional power,

2. furthers an important/substantial interest

3. unrelated to suppressing speech/content neutral, and

4. Narrowly tailored

Ward intermediate scruitiny

Usually applied deferentially given the government’s need to manage its own property

Valid if the regulation is:

1. content-neutral,

2. Narrowly tailored to a

3. significant government interest, and

4. leaves open ample alternative channels for communication

NOTE: applies to public forums.

Public Forum Doctrine

What is a public forum:

1. Traditional public forums:

   1. property that has as a principal purpose the free exchange of ideas; government property that has traditionally been available for public expression.

   (e.g., streets, sidewalks, and parks)

2. Designated public forums:

   1. Property intentionally opened by the government for speech by the public (i.e., property intentionally opened by the government for speech by the public)

1. Nonpublic forums

License for Use of Public Property

1. The government can require a license to use public property for certain activities as long as the criteria for granting the license are

1. Clear

2. Objective

3. Nondiscriminatory

1. reasonable fee is ok as long as the fee is set based on

   1. Fair

   2. Non-discriminatory standards

Public Forum Doctrine, Hostile Audience

Public debate cannot be prohibited simply because it invites dispute or stirs public to anger

1. Modern Rule for Hostile Audience:

1. If unpopular speakers are faced with a hostile audience threatening violence, law enforcement must make all reasonable efforts to protect the speakers

2. Only if it is not reasonably possible to do so may the police silence the speaker to avert imminent violence

2. Clear and present danger remains the rule

Nonpublic Forums/Limited Public Forums

a)     Reasonable, and

b)    Viewpoint neutral

c)     → subject matter- and speaker-based regulations are permitted if reasonable in light of the purpose of the property’s other uses

Traditional Public Forum

●      If content-based → apply strict scrutiny

If content-neutral → apply intermediate scrutiny (deferential Ward test)

Designated Public Forum

If the government has designated it as a public forum, then it must meet the tests applicable to traditional public forums.

However, government has the right to undesignated it.

Compelled Speech

1. Is it compelled speech?

a)     If people are not likely to attribute the speech to the complainer, then it is not compelled speech.

b)    Also consider if they can disavow the speech

3. 303 Creative: laws compelling speech of businesses engaged in expressive activity?

• Exceptions:

  1. Clear and present danger?

  2. If the compelled speech meets strict scrutiny?

Compelled Commercial Speech

Commercial speech: the government can compel disclosure of commercial speech if it is:

a)     Factual

b)    Non-controversial

(1)   Controversial could mean indeterminate or politically controversial

(2)   → argue both

c)     About the goods or services being sold.