Free Speech

Free Speech Analysis

1. Is it Speech?

2. Is it even the State?

   1. private parties

3. Can the Statute be challenged on technicality

   1. vagueness, overbreadth, underbreadth, prior restraint

4. What type of Speech is it?

   1. content, neutral, viewpoint

When does a Court find “State” action regarding private entities?

• Court finds judicial enforcement of private decisions to be impermissible state action

• When private parties perform government functions

• Private parties who are sufficiently entangled with government through funding or regulations

Why did the Court rule judicial enforcement of racially restrictive covenants in Shelly v. Kraemer violated the Fourteenth Amendment?

he Court ruled that judicial enforcement of racially restrictive covenants by state courts made it state action, which violated the 14th Amendment, even though the covenants were created by private individuals.

When does a private entity perform a "governmental" function?

• When the private entity performs functions that are really “governmental” in their function and nature.

What was the Court's ruling in Marsh v. Alabama regarding private property and public rights?

The Court ruled that a privately-owned company town acted like a municipality, and when private property is opened for public use, the owner's rights are limited by the public's statutory and constitutional rights

Why did Smith v. Allright consider private primaries to be a public function?

he Court ruled that private primaries are a public function because they are essential to the electoral process and subject to constitutional protections, even though party membership itself is not a state concern.

Why did the Court rule no state action in Rendell-Baker v. Kohn regarding a private school's firing of employees?

The Court ruled no state action because, despite receiving public funding, the private school’s personnel decisions were not influenced or compelled by the state, and the fiscal relationship did not create a "symbiotic relationship" sufficient for state action.

What is Facial Challenge and As Applies Challenge?

• As Applied: P argues that the statute is unconst as applied to HER, in that it violates her OWN rights

• Facial: an attack on the face of the statute

Vagueness:

• Would an ordinary person be able to know it is forbidden?

• Reasonable note as to the types of speech that is not protected

Overbreadth

Regulation that is substantially overbroad as to cover both protected and unprotected speech

• Coates v. Cincinati: crime for 3 or people acting annoying

Underbreadth

Prior Restraints

• Regulation that suppresses speech before the speech has taken place

• “strangles speech before its even occurred”

When can a Prior Restraint be Valid?

• To prevent irreparable harm;

• That money damages can’t fix

• Also Troopship Exception

What is the Troopship Exception?

• If there is imminent danger to national security then the government could get an injunction

• During wartime, if newspapers publish a movement of the troopship, and if the enemy could do something with that information, then the government could prevent the publication by injection

• NY Times v. US: held it was unconst for US to stop the NYT and WashPost from publishing excerpts of a classified Vietnam War study, citing national security concerns.

What is Content Based Regulation?

• Laws that regulate speech based on its subject matter or message.

• They are presumptively unconstitutional and

• Subject to strict scrutiny.

Reed v. Gilbert

• Town’s code prohibiting display of outdoor signs was content discrimination

What scrunity is used for Poltical Speech?

What is Unprotected Speech and what scrutiny is applied?

• Clear and Present Danger

• Fighting Words

• Obscenity

• Hostile Audiences

RATIONAL BASIS

Bradenburg Test

• State may not forbid or proscribe advocacy of the use of force or law violation except 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) Directed to inciting or producing

  • 2) Likely to incite or produce such action

What are Fighting Words?

• Words that by their very utterance cause harm or provoke immediate violence; understood by an average person as likely to incite a fight.

• Speaker does not have to INTEND violence. It does not look at the subjective intent of the speaker

• Laws regulating must be CONTENT NEUTRAL

  • RAV v. Paul: Law was struck down bc it selectively banned fighting words based on content (race, religon)

Are Threats protected?

• Not protected if the speaker knowingly or recklessly disregards a substantial risk that the statements would be seen as threats of violence, regardless of intent.

What is the test to determine if material is Obscene?

• Miller v. California (1973)

  • 1) Material utterly without redeeming value, no value at all

  • 2) Appeals to prurient interest in sex, shameful or morbid

    ·       Prurient interest? Patently offensive, question of fact

  • 3) Patently offensive because it affronted contemporary community standards related to depiction of sexual matters

Can State make private possession of obscene material a CRIME?

• No

• Stanley v. Georgia

What about Child Porn?

• New York v. Ferber:

  • Upheld law banning distribution of material showing real children in sexual acts; an exception to Stanley, allowing criminalization of private possession due to the compelling interest in preventing child exploitation.

• Ashcroft v. Free Speech Coalition:

  • Struck down law banning virtual child porn; no real children involved, so the speech is protected.

  • Government’s arguments about encouraging pedophilia or confusion with real porn were insufficient.

  • Law was overbroad and unconstitutional.

What is Less Protected Speech and what scrutiny is used?

• Commercial Speech

• Sexual or Indecent Speech

• Symbolic Speech

Intermediate Scrutiny

Is Indecent Speech protected?

• Offensive or provocative speech (like vulgar political statements) is generally protected

  • Cohens v. CA: A man’s “Fuck the Draft” jacket was protected speech.

• Hate speech laws must balance free expression with goals like dignity and equality, but they often run into constitutional limits when they restrict content-based expression.

What is Symbolic Speech?

• nonverbal conduct that expresses an idea or message and is intended to communicate with others.

  • Burning a flag in protest (Texas v. Johnson)

  • Wearing a black armband to protest war (Tinker v. Des Moines)

  • Burning a draft card (not protected in United States v. O’Brien)

  • Cross burning (protected unless done with intent to intimidate) – Virginia v. Black)

Test for Expressive Conduct

O’Brien Test

• 4 Part Test to determine whether regulation of conduct that combines both speech and non speech is constitutional

  • 1) Regulation must be within the constitutional power to enact;

  • 2) Regulation must further an important or substantial government interest;

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

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

What about Symbols?

• The government cannot compel symbolic acts (like flag salutes) or expressions (like slogans) unless it passes strict scrutiny.

• 1st amd protects not just the right to speak, but the right not to be forced to express a message.

• West Virginia v. Barnette (1943): The Court struck down compulsory flag salutes, holding that the government cannot force individuals to affirm beliefs.

• Rumsfeld v. FAIR (2006): The Court upheld a law allowing funding cuts to schools that barred military recruiters, finding no compelled speech.

What is Freedom of Association?

• 1st amd protects not just the right to speak, but the right not to be forced to express a message.

• Boy Scouts v. Dale (2000): The Court held that forcing the Boy Scouts to accept a gay leader violated their freedom of expressive association.

What test is used for Commercial Speech?

• Central Hudson test

  • 1) Must at least concern lawful activity and not be misleading

    • False reporting receives no protection

  • 2) Whether government interest is substantial

    • Intermediate scrutiny

  • 3) Whether regulation directly advances that government interest

    • Relatively narrow fit between ends and means

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

    • Must be narrow, not overboard

Can public figures recover for IIED?

• Public figures cannot recover for IIED unless publication contains:

  • 1) false statement

  • 2) made with actual malice

    • statement made with knowledge that the statement was false, reckless disregard of the truth

• Husler v. Falwell: there is a const right to parody and satire

• Snyder v. Phelps: Speech is of public concern if it relates to any matter of political, social, or other community concern or if it is the subject of legitimate news interest and value to the public.

When is the Time, Place, Manner Analysis used and what is it?

• For Content NUETRAL

• Even though court cannot regulate free speech, court can regulate time, place, and manner in which speech is delivered

What is Content Neutral?

• Laws or regulations that apply without regard to the message or subject matter of speech, often justified by time, place, and manner restrictions

• Subject to intermediate scrutiny

What is a Public Forum and Non Public Form

• Public Forum

  • o   Traditional: are those that are historically associated with expression such as sidewalks streets etc

    o   Designated: is one that has not historically been used for speech related activities but which the government has opened for such use

• Non Public Forum

  • essentially all public property that is not traditional or designated public forum

What are the restrictions for a law in a PUBLIC forum?

o   1) Content neutral

o   2) Narrowly tailored to serve a significant governmental interest and

o   3) Leave open ample alternative channels for communication of the information

What is the restrictions for a law in a NON-PUBLIC forum?

o   1) Viewpoint Neutral:

The government may prohibit speech on certain issues altogether but it may not allow only one side of an issue be presented

o   2) Reasonably Related to a Legitimate Governmental Interest

This means it does not have to the least restrictive means or even the most reasonable restriction

What is Viewpoint Based Discrimination?

• A more severe form of content-based regulation where the government favors or disfavors a specific perspective within a broader subject.

• It is almost always unconstitutional.

• Shurtleff v. City of Boston: city hall prohibited display of Christian flag after years of approving other flags to hang on the third pole of the city plaza

What test does the Court use to balance public employees' free speech against the government's interest in efficiency?

• The Pickering Balancing Test, which weighs the employee’s speech rights with the government's interest in maintaining an efficient workplace.

How does Garcetti v. Ceballos limit public employees' free speech?

Speech made as part of official duties is not protected by the First Amendment, as it is considered government speech rather than personal expression.

What limits are placed on students' free speech in schools?

• Schools can limit speech that

  • Materially disrupts school activities (Tinker v. Des Moines) or

  • Contradicts the school’s educational mission (Hazelwood School v. Kuhlmeier).

What standard allows school searches and suspensions of students in certain cases?

• New Jersey v. TLO allows searches based on reasonable suspicion, and

• Morse v. Frederick allows suspensions for promoting illegal activities like drug use.

What did Buckley v. Valeo decide about campaign finance?

• The Court ruled that campaign contributions and spending are protected by the First Amendment,

• allowing limits on contributions and requiring disclosure to prevent corruption, but striking down limits on candidate spending and independent expenditures.

What did Citizens United v. FEC decide about corporate and union spending?

The Court ruled that corporations and unions can spend money in elections, saying political speech cannot be limited based on the identity of the speaker, including corporations.

What is the difference between slander, libel, and defamation?

• Slander is oral defamation

• Libel is written defamation

• Defamation can be either oral or written.

What are the elements of a defamation cause of action?

• The statement must be

  • 1) published to a third party,

  • 2) not privileged, false, and

  • 3) cause damages.

• New York Times v. Sullivan required public officials to prove actual malice for defamation

• Gertz v. Robert Welch held that private individuals must show actual malice for punitive damages, and they are not automatically subject to strict liability.

What are the types of defamation privileges?

• Absolute privilege applies to statements made under oath in court or by Congress members

• Qualified privilege exists when there is a special duty or reason to make the statement.