Constitutional Law Foundations 8 - Freedom of Speech

Democracy relies on the free exchange of information, opinions, and ideas.
The First Amendment prohibits Congress from making laws that restrict freedom of speech.
The Fourteenth Amendment extends this protection to states and local governments.
These amendments protect against government actions only; private restrictions (e.g., a parent's rules) are not covered.
Freedom of assembly, which protects peaceful meetings, is similar to freedom of speech.

Speech includes spoken, written, and recorded words.
It also encompasses symbols and expressive conduct (e.g., hand gestures).
Speech is defined as words, symbols, or actions intended to convey a message that is reasonably likely to be understood.
Example: Flag burning as a form of protest is protected speech (symbolic conduct), as established in a Supreme Court case related to a Texas law.
Freedom of speech includes the right to remain silent; the government cannot compel speech (e.g., mandatory participation in the Pledge of Allegiance).

Content-based restrictions target speech based on its subject matter or viewpoint.
Example 1: A city restricts the use of meeting rooms to discussions not involving politics (subject matter restriction).
Example 2: A city prohibits the use of meeting rooms for meetings promoting marijuana legalization (viewpoint-based restriction).
Content-based restrictions are subject to strict scrutiny.
To be constitutional, the restriction must be necessary to achieve a compelling government purpose.
This is a difficult standard to meet, and most content-based restrictions fail.

Content-neutral restrictions regulate the time, place, or manner of speech.
Example: A city ordinance requires meetings in city hall to end by 8 PM.
Content-neutral restrictions are subject to intermediate scrutiny.
The restriction must be substantially related to an important government purpose.
It must not burden substantially more speech than necessary (narrowly tailored).
Example: Noise ordinances setting quiet hours help children sleep, serving an important public interest. The restriction is narrowly tailored by allowing the band to play inside or until 10 PM.
Summary: Content-based restrictions require strict scrutiny; content-neutral restrictions require intermediate scrutiny.

A law is unconstitutionally vague if a reasonable person cannot determine what is prohibited.
Vague laws can deter speech because people fear violating them.
Example: A noise ordinance prohibiting "loud noise" after 10 PM is too vague without specifying decibel limits.

A law is unconstitutionally overbroad if it regulates substantially more speech than is constitutionally permissible.
Overbroad restrictions are facially invalid and cannot be enforced.
Example: A 24/7 noise restriction is overbroad because it restricts daytime activities when the goal is to ensure nighttime sleep.

Certain categories of speech receive less protection or are unprotected based on their content.

Words likely to provoke a violent response are not protected, but laws targeting them are often overbroad.

True threats convey a message that the speaker intends to harm the recipient.
The speaker must subjectively understand the message is threatening, but recent Supreme Court case told us, hey, kinda rhymes, that even recklessness is sufficient.
Example: A bank robber threatens a police officer.

Obscene speech is not protected by the Constitution.
Test for obscenity:
- Appeals to the prurient interest (excessive interest in sexual matters).
- Is patently offensive to the local community.
- Lacks serious literary, artistic, political, or scientific value (national standards apply).

Commercial speech (advertising) receives qualified protection.
- Protected if truthful and not unlawful.
- Unprotected if unlawful, untruthful, or fraudulent.
False or deceptive advertising and ads for illegal activities can be prohibited.
Truthful commercial speech is subject to intermediate scrutiny.
- Regulations must serve a substantial government interest.
- The regulation must directly advance that interest.
- The regulation must be narrowly tailored.
Examples:
- Ads for illegal activities (Bonnie and Clyde advertising robbery services) are not protected.
- False advertising (moonshine as a cold cure) is not protected.
- Advertising a legal gun shop is protected if the ad is truthful and not deceptive.

The extent to which the government may regulate speech on government property depends on the type of forum. Four types of forums exist:

Historically open to speech-related activities (e.g., parks, sidewalks, town squares).
Conduct aspects of speech are subject to reasonable time, place, and manner regulations.
Content-based regulations are subject to strict scrutiny.
Content-neutral time, place, and manner regulations are acceptable if:
- They serve an important government purpose.
- They are narrowly tailored.
- They leave open adequate alternative methods for communication.
Examples: Restrictions on noise levels or park closing times.

Not historically open to speech, but the government has opened them for speech (e.g., a multipurpose room in a municipal building).
Treated the same as public forums during the designated window.
Content-based regulations are subject to strict scrutiny.
Content-neutral time, place, and manner regulations are acceptable if:
- They serve an important government purpose.
- They are narrowly tailored.
- They leave open adequate alternative places for communication.

Not historically open for speech (e.g., military bases, government workplaces, government offices).
The government can regulate speech to reserve the property for its intended use.
Regulations must be viewpoint neutral and reasonably related to a legitimate government interest.
Example: A ban on political signs during official meetings is permissible if viewpoint neutral.

Government property opened for a limited purpose or specific speech activity (e.g., a town hall hosting a debate on a specific topic).
Regulations must be viewpoint neutral and reasonably related to a legitimate government purpose.
Content-based restrictions are allowed to reserve the forum for its intended use.
Example: A town can prohibit discussion of topics other than the curfew during a debate about curfews.

Public K-12 schools are considered non-public forums during school hours.
Schools can regulate speech that is disruptive to school activities.
The First Amendment freedom of the press does not give the press greater speech protection than others.