Infringement of Freedom of Speech: Comprehensive Study Notes

What is an Infringement of Freedom of Speech? (Based on Erwin Chemerinsky, The First Amendment, 2 ed. (2021))

Introduction to Infringement of Speech

• An infringement of freedom of speech occurs where the government prohibits or penalizes speech—criminally, civilly, or by withholding compensation, or by compelling speech.

• Infringements are not necessarily unconstitutional, but they trigger First Amendment scrutiny.

Prerequisites for Discussion

Recap: What Is a Prior Restraint?

• Definition: An administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.

• Nature: It is a form of censorship.

• Examples: Court injunctions stopping speech, licensing systems, government seizures of newspapers.

Prior Restraints Are Frowned Upon

• Presumption Against Validity: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."

• Government's Burden: The government "thus carries a heavy burden of showing justification for the imposition of such a restraint."

Strict Scrutiny Test for Prior Restraints

• The government must prove that the law is narrowly tailored to serve compelling state interests.

• Least Restrictive Means: Must use the least restrictive means to advance a compelling government interest.

• Presumption: Generally presumed to be unconstitutional.

Potential Exceptional Circumstances for Prior Restraints (Compelling Interests)

• National Security: Under certain extreme circumstances (e.g., troop movements during wartime), prior restraints might be justified.

• Obscenity: Materials legally defined as obscene may be subject to prior restraints.

• Incitement to Violence: Speech that would lead to imminent lawless action (e.g., violence or riots) could theoretically justify a prior restraint.

Three-Part Test for Gag Orders

• Nature and Extent of Pretrial News Coverage: Assess the likelihood of pervasive and inflammatory media coverage.

• Mitigation by Other Measures: Determine if less restrictive alternatives (e.g., postponing the trial, changing venue) could protect the defendant's fair trial rights.

• Effectiveness of Restraining Order: Evaluate if the gag order would actually prevent the perceived harm, considering the widespread reach of media.

Analysis in Free Speech Cases (Four-Step Process)

Step $1$: Is there government action that infringes speech?

• Types of Infringements:

  • A statute that prohibits speech and authorizes criminal punishments (e.g., incitement, obscenity, false advertising statutes).

  • Prior restraints (including court orders, injunctions, gag orders, and licensing schemes).

  • Other government actions that substantially burden or infringe speech, subjecting them to First Amendment scrutiny.

Step $2$: Is protected speech involved?

• The First Amendment does not apply to government speech.

Step $3$: Determine the level of constitutional scrutiny.

• Strict Scrutiny:

  • Applies to prior restraints.

  • Applies to content-based regulations.

  • Exceptions: Facially content-based regulations justified by a content-neutral desire to avoid undesirable secondary effects of the speech, and government subsidies.

• Intermediate Scrutiny:

  • Applies to content-neutral regulations.

Step $4$: Vagueness or Overbreadth problems?

Licensing Schemes: A Form of Prior Restraint

• Definition: Where the government requires a license or permit for speech to occur.

Case Law Examples on Licensing

• LOVELL v. CITY OF GRIFFIN, GA., $303$ U.S. $444$ (1938)

  • Issue: Can a city require individuals to obtain a permit before distributing pamphlets or literature?

  • Holding: No. The ordinance was unconstitutionally broad, infringing upon the freedom of speech and press.

  • Rationale: The ordinance acted as a prior restraint by requiring government approval for distributing literature, which is presumptively unconstitutional. Such legislation would restore licensing and censorship systems that the First Amendment was intended to prohibit.

• Intermediate Scrutiny Test for Content-Neutral Laws:

  • A content-neutral law is constitutional if it:

    • Is unrelated to the suppression of speech.

    • Advances a significant or substantial government interest.

    • Is narrowly tailored to achieve that interest while only incidentally restricting protected speech.

    • Leaves open ample alternative channels for communication of the information.

  • Takeaway: Content-neutrality does not give the government 'carte-blanche' to restrict anything. The regulation must protect a substantial government interest (e.g., preventing traffic disruption during rush hour), actually advance that interest, and leave reasonable alternative channels for speech.

Test for Analyzing Licensing or Permit Laws

• Licensing or permit laws are allowed only if:

  1. The government has an important reason for licensing.

  2. There are clear criteria leaving almost no discretion to the licensing authority.

  3. There are procedural safeguards (e.g., prompt determinations, judicial review).

1. Important Reason

• Cox v. New Hampshire, $312$ U.S. $569$ (1941)

  • The Court upheld an ordinance requiring permits for parades or demonstrations.

  • Permits could be denied only if an area was already in use by another group.

  • Important Reason: The city needed license notification to provide proper policing and preserve order (ensuring only one parade at a specific place/time).

  • The Court stressed that the "licensing board was not vested with arbitrary power or an unfettered discretion."

• Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, $536$ U.S. $150$ (2002)

  • Issue: Can a village require individuals going door-to-door for religious or political advocacy to register and obtain a permit?

  • City's Argument: To protect residents' privacy, prevent fraud, and reduce crime from unknown solicitors.

  • Holding and Rationale: The Court struck down the ordinance as unconstitutional. The village's interests could be achieved through less restrictive means (e.g., anti-fraud laws, "No Soliciting" signs).

2. Clear Standards Leaving Almost No Discretion to the Government

• A licensing statute cannot give unfettered discretion to a government official over expressive activity.

• Concern: Discretion could be used for content-based censorship, granting permits to favored speech and denying them to disfavored expression.

• CITY OF LAKEWOOD v. PLAIN DEALER PUBLISHING CO., $486$ U.S. $750$ (1988)

  • Issue: Does an ordinance giving a city mayor discretionary authority to grant or deny permits for newspaper racks on public property constitute an unconstitutional prior restraint?

  • Holding and Rationale: Yes. The ordinance was unconstitutional due to excessive discretion, allowing arbitrary or discriminatory denials and content/viewpoint suppression.

• Forsyth County, Georgia v. Nationalist Movement, $505$ U.S. $123$ (1992)

  • The Court found unconstitutional an ordinance requiring a permit for demonstrations and allowing the government to set a fee up to $1,000$.

  • Reasoning: "[T]here are no articulated standards either in the ordinance or in the county’s established practice. The administrator is not required to rely on any objective factors."

3. Procedural Safeguards

• Any system of prior restraints must have:

  • A prompt decision by the government on whether speech is allowed.

  • A full and fair hearing before speech is prevented.

  • A prompt and final judicial determination of the validity of any preclusion of speech.

• Freedman v. Maryland, $380$ U.S. $51$ (1965)

  • Unanimously declared unconstitutional a Maryland law requiring a license to exhibit motion pictures.

  • Such a system is allowed "only if it takes place under procedural safeguards designed to obviate the dangers of . . . censorship."

  • The "burden of proving that the film is unprotected expression must rest on the censor."

  • Requires prompt determination of license requests and prompt judicial review of denials.

• FW/PBS, Inc. v. City of Dallas, $493$ U.S. $215$ (1990)

  • Declared unconstitutional a city ordinance requiring licensing of "sexually oriented businesses."

  • Reasoning: Failed to require prompt determination of license requests or provide for judicial review of denials, lacking the Freedman procedural safeguards.

Other Forms of Infringement of Speech

Civil Liability

• Defamation Cases:

  • The Court consistently holds that civil liability for speech, even in private civil litigation, is an interference with speech and must meet First Amendment scrutiny.

  • Example: New York Times v. Sullivan, $376$ U.S. $254$ (1964)

    • State defamation law was limited by the First Amendment.

    • "What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute."

• Tort Cases (e.g., Invasion of Privacy, False Light, Intentional Infliction of Emotional Distress):

  • Liability for such torts must be consistent with the First Amendment.

  • Even though litigation is between private parties, the state's law (statutory/common law) is the basis for liability, thus involving state action and requiring compliance with First Amendment standards.

Prohibitions on Compensation

• The government infringes freedom of speech by prohibiting individuals from being paid for their expression.

• Simon & Schuster v. Members of the New York State Crime Victims Board, $502$ U.S. $105$ (1991)

  • Declared unconstitutional a state law preventing accused/convicted criminals from profiting by selling stories of their crimes to media.

  • The law didn't prohibit speech, only prevented profiting.

  • Holding: "[A] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech."

• United States v. National Treasury Employees Union, $513$ U.S. $454$ (1995)

  • Issue: Does the ban on honoraria for lower-level federal employees violate their First Amendment rights?

  • Holding: Yes, a First Amendment violation.

  • Rationale: Concerns about impropriety don't apply if there's no link between an employee's job and the speech subject matter or the payor.

  • The law was too broad, restricting speech unrelated to official duties.

  • The government failed to demonstrate a sufficiently strong interest in prohibiting all honoraria, especially when no conflict of interest was present.

  • Takeaway: This case limits restrictions on federal employee speech, reinforcing protections for expressive activities unrelated to their jobs.

Compelled Speech

• The government can infringe the First Amendment by compelling speech; there is a right to be silent and refrain from speaking.

• West Virginia State Board of Education v. Barnette, $319$ U.S. $624$ (1943)

  • Issue: Does a state law requiring students to salute the flag and recite the Pledge of Allegiance violate the First Amendment?

  • Flag Saluting as Symbolic Speech: "There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind."

  • Holding and Rationale: Yes. Overruled Minersville School District v. Gobitis. Compelling public schoolchildren to salute the flag was unconstitutional.

  • The First Amendment cannot enforce unanimity of opinion; national symbols should not trump constitutional protections.

  • "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

  • Takeaway: Landmark decision protecting individual rights against government compulsion.

• Wooley v. Maynard, $430$ U.S. $705$ (1977)

  • Held that an individual could not be punished for blocking out "Live Free or Die" on a New Hampshire license plate.

  • Rationale: "the right of freedom of thought protected by the First Amendment. . . includes both the right to speak freely and the right to refrain from speaking at all. The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’ ”

• National Institute of Family and Life Advocates v. Becerra, $585$ U.S. ____ (2018)

  • This case involved professional speech, specifically California's Reproductive FACT Act requiring crisis pregnancy centers to disclose certain information about abortion services and licensing.

  • Related Precedent: Planned Parenthood of Southeastern Pennsylvania v. Casey, $505$ U.S. $833$ (1992)

    • A state law required doctors to provide specific information to women seeking abortions (e.g., procedure nature, health risks, gestational age, availability of materials on fetus, medical assistance, child support, adoption services).

    • Issue: Did the law impose an "undue burden"?

    • Holding and Rationale: No, it did not. The statute was constitutional, amounting to "reasonable measure[s] to ensure an informed choice, one which might cause the woman to choose childbirth over abortion."

  • Issue in NIFLA v. Becerra: Does the Reproductive FACT Act violate the First Amendment by compelling crisis pregnancy centers to provide certain disclosures about abortion services and licensing?

  • (Implicit/Anticipated Holding based on slide context): The Supreme Court found the law likely unconstitutional, emphasizing that professional speech is not a separate category deserving less protection.

Status of Professional Speech

• The Court has not recognized "professional speech" as a separate category of speech entitled to less protection.

• Speech is not unprotected simply because it is uttered by "professionals."

• The Court has been "reluctant to mark off new categories of speech for diminished constitutional protection" and "especially reluctant to 'exemp[t] a category of speech from the normal prohibition on content-based restrictions.'"