First Amendment Outline from fall 2021

First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the pres; or the right of the people peacefully to assemble, and to petition the Government for redress of grievances.”

 Theories/ Values of Free Speech

o Truth  If truth is shown, truth will always win  Point of protecting speech is to get everything out there, marketplace of ideas o Self-Government  First purpose of the 1st am. Is to protect out right to govern ourselves  Give us the best democracy possible o Autonomy  Our ability to identify and determine what we want to express  Emphasize the intrinsic worth of speech to individual speakers and listeners o Negative Theories  Can’t trust the government, so must have some way to call them out  Can’t be trusted, needed to be checked for corruption

 Levels of Scrutiny

o Strict Scrutiny  Government must prove:  1) law is necessary to achieve a compelling government interest  2) it is narrowly tailored  3) there are no other alternatives to reach interest (least restrictive)  Almost always fatal to challenged law o Intermediate Scrutiny  Government must prove:  Law is substantially related to an important government purpose (less compelling)  Reasonable regulation  Doesn’t have to be least restrictive but less restrictive than what government proposes o Rational Basis  Challenger must prove that law does not rationally relate to a legitimate government  Burden shifts to challenger  Almost always deferential to government

 The Distinction between Content-based and Content-

Neutral Regulations

o Content-Based

 Triggered by the substance or content of the message that is conveyed  Strict Scrutiny  Courts are suspicious of these  Restrictions that are aimed at a particular subject and those restrictions resulting from the speaker’s identity  Particularly suspicious- viewpoint based  A restriction targeted at one side of debate  Severe SS

o Content- Neutral

 Regulation of speech is unrelated to the speech content  Intermediate Scrutiny  Time, Place, and Manner Restrictions  Not focused on the identity or the subject or message of the speech  Restrictions focus on the circumstances under which the speech is delivered  In order to be constitutional: o The regulation must also be narrowly tailored to serve a significant state interest and o Must leave open ample alternative channels for communication  Requirements do not apply to the government when the government is the speaker  The gov. can regulate speech indirectly by imposing limits that are not concerned with the content of speech, but affect the circumstances under which expression takes place  Content-Neutral: not focused on the identity or subject or message of the speech  Focus is on circumstances under which the speech is delivered  In order to be constitutional, the regulation must also be narrowly tailored to serve a significant state interest and must leave open ample alternative channels for communication 

Case Facts/ Holding Reed v. Town of Gilbert (2015).

FACTS: Ordinance regulating the posting of signs, created different categories of signs, including “ideological Signs, Political Signs, and Temporary Directional Signs Relating to a Qualifying Event.”  Applied different restrictions to each category  More restrictive with regulation of temporary directional signs

**Time, place, and manner

 Constitutional to prohibit them on public property  Narrowly tailored to further a legitimate state interest- in maintaining the aesthesis in public areas  Not overbroad  1 st am does not guarantee access to public property simply because its owned by the government Clark v. Community for Creative Non-Violence

Time, place, and manner

FACTS: Prohibited camping and sleeping overnight in areas of certain national parks in order to promote conservation of the park o Issued permits to certain groups o Allowed structured as part of demonstrations o Did not allow a symbolic sleep tent HOLDING: o Does not violate the 1st am o Content-neutral regulations of time, place, and manner of expressive speech or conduct do not violate the 1st am as long as they are narrowly-tailored to further a substantial gov interest and as long the regulation leaves open ample alternative avenues for expression o Applies to all sleep regardless of message

 Overbreadth and Vagueness

o As applied challenge

 Concern focuses on how the law prevents you from expressing your particular message on a matter of public concern  May rest on the premise that a lawmaking body cannot predict the future or foresee every possible application of a general law

o Facial Challenge “on its face”

 Claim that a law is unconstitutional as a general matter  Frontal attack on the constitutional judgement and wording of the lawmakers who drafted the law  Lawmakers were reckless when creating law  Broader attack  Attacks full scope of the statute’s reach and not merely the effect of the statute on the facts of the particular case

o Overbreadth

 Empowers court to strike down statutes that may permissibly regulate some expression, but are also so broad that they could prohibit constitutionally protected expression  Gooding v. Wilson (1972)  Held that an overly broad statute justifies a constitutional challenge from someone whose speech might have been rightfully restricted under a “narrowly and precisely drawn statute.”  Unique because it does not require the challenger to have “standing”

o Vagueness

 An unconstitutionally vague law is so unclear that people “of common intelligence must necessarily guess at its meaning.”  Fail to provide fair notice to citizens regarding the scope of prohibition  Coates v. Cincinnati (1971)  Held that “annoying” is too vague  What may be annoying to one person may not be to others  The language of the ordinance leaves the person of ordinary intelligence having to guess the meaning

o Prior Restraint

 Action by the government to prevent speech before it takes place

Case Facts/ Holding Near v. Minnesota (1931)

Injunctions

FACTS: Statute provided for the abatement as a public nuisance of a “malicious, scandalous and defamatory newspaper, magazine or other periodical.” o “The Saturday Press” which criticized various racial groups and published racial slurs about several Minnesota public officials o Grounds that Near violated the statute by creating a public nuisance HOLDING: Unconstitutional o Not aimed at punishing publishers for offensive content, but rather at completely ceasing publication of print media that is deemed “malicious, scandalous, or defamatory.” New York Times Co. v. United States [The pentagon Papers Case] (1971)

Prior Restraint and National Security

FACTS: NY Times published excerpts from a top secret study of the Vietnam War conducted by the US department of Defense HOLDING: o Gov did not meet burden of showing justification for enforcement of the restraint o The US gov sought to enjoin the NY Times from publishing the contents of a classified study

 Incitement to Violence or Subversion

o Brandenburg Test  The government may forbid “advocacy of the use of force or of law violation [only where] advocacy is directed to inciting or producing imminent lawless action is likely to incite or produce such action.”  Formal analysis requires evaluation of the following three components:  Imminent harm (concern with time, imminence = soon)  A likelihood that the speech will produce illegal action (concern with probability); and

 Hate Speech

o Supreme Court has never defined hate speech o Starting point – Beauharnais: communication that “portray, depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed, or religion [exposing citizens] to contempt, derision, or obloquy.”

Case Facts/ Holding Beauharnais v. Illinois (1956)

Group Libel

FACTS:

 School board- wiretap HOLDING:  The 1st Am protects legally obtained information that was originally obtained illegally  Matter of public concern

R.A. v. City of St. Paul (1992)

Hate Speech

FACTS: Ordinance that prohibited the display of a symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender” Burnin HOLDING:  Unconstitutional  Discrimination among which groups are protected against expressions of hate  Targeted specific groups  Discriminated on the basis of content Snyder v. Phelps (2011)

Intentional Infliction of Emotional Distress

FACTS: Funeral HOLDING:  Constitutionally protected because they addressed a political matter of public concern

 Sexually Explicit Expression

o Obscenity

 Miller Test: Speech is obscene if -

“The average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest:The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the application state law: andThe work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Case Facts/ Holding Roth v. United States (1957)

FACTS: Prosecuted for violating a federal obscenity statute that prohibited the mailing of "every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other

Obscenity

publication of a indecent character." HOLDING:  Unprotected speech  Will protect ideas that have even the slightest amount of redeeming social value  See obscenity as being bad, with very little value Miller v. California (1973)

Obscenity

FACTS: Unsolicited ads for "adult" material sent through mail HOLDING:  Test  Not protected by the 1st am  States have legitimate interest in protecting minors

Paris Adult Theater I v. Slaton (1973)

Obscenity

FACTS:

 Showing of obscene films at adult theaters  Had warning about content and that you had to be 21+ to view it HOLDING:  Zoning regulation – not prohibition, but just can’t show in this area.

 Sexually Explicit, but Nonobscene Expression

o If want to prohibit it, have to meet the compelling interest test o Burden of proof on the Government to prove it has to do what it is doing to prevent this material from being circulated etc.

Case Facts/ Holding American Booksellers Ass’n v. Hudnut (1986)

Regulating Pornography as Subordination of Women

FACTS: State law criminalizing porn that depicted women in violent/submissive sexual positions even if not obscene HOLDING:  Struck down law  Viewpoint based restriction, trying to punish ideas because ideas are viewpoints the state does not like  Does not meet the legal obscenity test  Must allow people to evaluate opinions for themselves Erznonik v. Jackson (1975)

Nudity Bans

FACTS: Ordinance made it illegal to play movies with nudity at drive in theaters that were visible from public streets HOLDING:  Censorship of protected speech is valid where the message is so invasive that an unwilling individual could not avoid it  Not all nudity is offensive therefor, too broad  Other scenes might also distract drivers

Young v. American Mini Theaters (1976)

FACTS: City ordinance limiting the number of adult theaters per block HOLDING:  Intermediate scrutiny

convince the court to uphold the FCC decision that dines could be imposed Sable Communications, Inc. v. FCC (1989)

Indecent and Sexual Speech in new Media

FACTS: Dial-a-Porn HOLDING:  Sexual expression indecent, but not obscene is protected  Not a Pacifica case, because it’s not a surprise, you have to dial in

Reno v. American Civil Liberties Union (1997)

Indecent and Sexual Speech in new Media

FACTS: Communication Decency Act, where Congress reacted to constituent complaint and made it almost impossible to put sexual content (not obscene content) because of risk to children.

 Specifically, §223(a) prohibited the knowing transmission of

obscene or indecent messages to any minor recipient. §223(d) prohibited knowingly sending or displaying of patently offensive messages in a manner available to minors. HOLDING:  Struck law down  SC did not want to limit the internet  If ban from kids, have to ban from adults too  Overbreadth  Can’t have a blanket rule prohibiting indecency because it’ll also prevent adults from accessing material  Not like broadcasting, does not invade privacy in same way  Not like Pacifica, applies to all hours, and punishment too grave to be criminal  Not a zoning situation, the entire internet is subject to restriction

Ashcroft v. Free Speech Coalition (2002).

Indecent and Sexual Speech in new Media

FACTS: Prohibition against child porn to sexually explicit images that appear to depict minors are produced without use of real children HOLDING:  Overbroad  1 st am required more precise formations of the restrictions  Injuries that are created using actual children are not threatened by the creation and publication of visual materials created without the participation of an actual child

o Violent Speech

 Those who wish to restrict violent speech in society have taken guidance from the Miller test Case Facts/ Holding United States v. Stevens (2010)

FACTS: Congress had criminalized the commercial creation, sale, or possession of certain depictions of animal cruelty. (Importantly, the statute addressed only portrayals of animal cruelty, not the acts themselves) HOLDING:

Violent Speech in New Media

 Found Statute invalid  Was not one of the categories of speech that should be listed on protected speech list  Overbroad  Refused to identify a new category of speech as unprotected  Significant for its explanation for refusing to identify a new category of speech as unprotected o Court described unprotected categories of speech “as being ‘of such slight social value as a step to truth that any benefit that may be deprived from them [was] clearly outweighed by the social interest in order and morality.” Brown v. Entertainment Merchants Ass’n (2011)

Violent Speech in New Media

FACTS: Prohibited the sale or rental of violent video games to minors HOLDING:  Did not uphold the restriction  Traced the Miller factors, delimiting its scope to patently offensive depictions of violence that lacked redeeming social value and violated community standards  Pointed to other depictions of violence in mainstream culture: Snow White, Lord of the Flies etc.

 Commercial Speech

o SCOTUS unequivocally extended First Amendment protection to commercial speech o Last category added for nonspeech o Unlike political information – must be truthful o Must be lawful advertisement, and can’t incite illegal activity

Case Facts/ Holding Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976).

Commercial Speech

FACTS: A VA law that prohibited pharmacists from advertising the prices of prescription drugs HOLDING:  Struck down law  Consumers have a right to receive information  “Untruthful speech, commercial or otherwise, has never been protected for its own sake.”  Allow people to make their own choices  Did not present many restrictions Central Hudson gas v. Public Services Comm’n (1980).

Regulating Advertising

FACTS: Prohibited electrical utilities from engaging in promotional advertising designed to stimulate demand for electricity HOLDING:  Found it violated the 1st am  Made it explicit that commercial speech is less protected speech  TEST: for evaluating whether a regulation of commercial speech is constitution has four steps, to be

Forum -Strict Scrutiny

public streets and parks, ‘any restriction based on the content of. speech must satisfy strict scrutiny, that is, the restriction must be narrowly be tailored to serve a compelling government interest.”  Besides time, place, and manner restriction, no restrictions on speech  EXAMPLES: o Streets o Parks Designated Public Forum - Strict Scrutiny

o Designated public forums occur on government property that has traditionally been closed, but that the government has designated to be open. o Government designates a space for public forum, and speech is unlimited until it’s de-designated as a public forum Limited Forum - Reasonableness with non- viewpoint-based discrimination

o Occur on government property opened for “limited. use by certain groups or dedicated solely to the discussion of certain subjects. in such a forum, a government entity may impose restriction on speech that are reasonable and viewpoint neutral o Where government sets a place for limited topics, class of people “only school-related for this area” o EXAMPLE o If you are allowed speech that praises the dean, can’t disallow critical speech. Once you designate who can use it, can’t designate which viewpoint. Non-Public Forums - Gov. may prohibit speech only if the prohibition is viewpoint neutral and reasonable

o Occur on government property that government may properly close and has not opened. o This includes public property that “is not by tradition or designation a forum for public communication. ”

o Speech in Public Places Other than Traditional Public Forums

Government as Educator

o A successful public school system should promote tolerance, develop critical thinking and communication skills, and empower students to seek knowledge to make informed decision about public matter o Do not lose their rights at the school house door o Court must shoe that the restriction is not simply a reaction to an unpopular viewpoint.

o Tinker is the law o Can restrict if:Disrupt schoolIntrudes on the right of other students Restrictions on Government Employee Speech

o Is more extreme than previous categories o Connick-Pickering Test o 1 st am protection attaches to off-duty, unofficial government employee speech if: o It involves matter of public concern o The employee can prove that the employee’s interest in exercising freedom of expression outweighs the government’s interest as an employer o Turns on the question of whether the speech is on the job within the scope of employment and also requires that a court engage in balancing government needs and the employee’s speech rights o 1 st am does not protect gov employee speech while the employee is on the job and specks within the scope of the employee’s duties Speech-Restrictive Conditions on Public Forums- Patron

o Can indirectly impose conditions when giving money (government) o If using your own funds, government has less of a say

Case Facts/ Holding Mahanoy area School District v. B., a Minor (2021).

Government as Educator

FACTS: Snapchats about being mad about not making cheer team o Kick her off the JV team after seeing photos HOLDING: o She won o They were off campus speech o Nothing that looked criminally punishable o Three things that lean in her favor o When you are not in school, school does not have authority over you, that is up to parents and the school should not have a part in it o Ruling in favor of the school would mean that they could control speech 24/7 of students o Don’t want students to be afraid to speak their minds o Applied part 2 pf the Tinker test o However, his does not give them free range to not be held accountable for speech outside of school – is not a blanket rule Connick v. Myers (1983). FACTS: Was told she would be transferred to prosecute cases in a different area of criminal court

Providers of Professional Services

o Content-based restriction are subject to SS o Professional speech is not a separate category of speech but is subject to the same Ss requirements of other content based speech o Unduly burdensome o Cannot survive even less scrutiny

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995).

Compelled Speech and Private Discrimination

FACTS: Irish council denied LGBT application to participate as a group in a parade (South Boston Allied War Veterans Council) HOLDING:  Upheld - not unconstitutional  Purpose of parade was for them to make a collective statement  Speaker had the autonomy to choose the content of their message  Government may not compel a speaker to change the particular message a speaker is making  Imposed additional message that was not compatible with groups beliefs

 Freedom of (Expressive) Association

o Final clause of the 1st Am protects “the right of the people peacefully to assemble, and to petition the government for a redress of grievances.” o Works well with free speech clause, since speech is more effective when people band together to express particular message o Strongest when combined with another 1st Am right o There is not one test that covers all associations o Compelled Disclosure of Membership or Support

Case Facts/ Holding NAACP v. Alabama (1958)

Compelled Disclosure of Membership

FACTS: Reveal to the state Attorney General the names and addresses of all the NAACP’s Alabama members and agents  Argued it would lead to harm of members HOLDING: o Invalid o No substantial bearing on the states interest o Have the right to have freedom of association o SS o Compelling interest required o If going to destroy org by disclosure, must have very good compelling reason NAACP v. Button (1963)

Restrictions on Organizational Activity

FACTS: Sought to finance litigation directed at ending racial discrimination in public schools  Held meetings inviting local Virginia parents and children to participate in lawsuits brought by NAACP attorneys

HOLDING:

 Is protected  1 st am’s protection for free expression is “delicate and vulnerable as well as supremely precious in out society. because 1st am freedoms need breathing space to survive, government may regulate in the area only with narrow specific.”  Can only be controlled when compelling state interest Boy Scouts of America v. Dale (2000)

Compulsory Inclusion in Membership – the right not to associate

FACTS: The scouts assert that homosexual conduct is inconsistent with the values it seeks to instill HOLDING:  May not prohibit a private organization from baring homosexuals from membership  State violated. The Boy Scouts’ right to expressive association be prohibiting it from expelling members on the sole basis of sexual orientation  Relied on “scout oath” – “morally straight”

 Money and Political Campaigns

o “the first Amendment has its fullest and most urgent application to speech uttered during s campaign for political office.” o Main question – what 1st Am limits might apply to congress’s and the states’ efforts to restrict the flow of money into political campaigns? o Right to spend money to get your political message out o Campaign finance- viewed as protected by the 1st Am o Super PAC  Spend independently  No limitations o Court never held that money is speech or even that money is a mode of expression  However it does enable speech o No limits left on expenditures o No limits on soft money o No unions can make federal contributions

Case Facts/ Holding Buckley v. Valeo (1976).

Expenditure and Contributions limitations

FACTS: established a restriction on the amount of money a person or group can give in contribution to a political campaign and set a cap on expenditures  ACT -Contributions o 1) a person could only contribute $1,000 to any single candidate per election o 2) a political committee could contribute only $5,000 to a political candidate o 3) each contributor was limited to $25,000 per year  ACT -Expenditures o 1) Independent expenditures by individuals and

o Saw that it was a way to get around limitations and disclosure o Soft Money - Donations made solely for the purpose of influencing state or local elections were not governed by disclosure requirements or source and amount limitations

Federal Election Comm’n v. Wisconsin Right to Life (2007)

Enacting of the Bipartisan Campaign Reform Act of 2002

FACTS: BCRA - federal crim for a corporation to broadcast, around elections, something that names a federal candidate for office and is targeted to voters o Ad urging voters to protest judicial nominees

HOLDING: o violates the 1st am o "issue advocacy" - are not the functional equivalent of express advocacy o Gov does not have a compelling interest in regulating issue advocacy around elections o TEST- whether the ad in question Is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate o SS o As-applied challenge o Distinguished from McConnell

Citizens United v. Federal Election Commission (2010)

Corporate Expenditures and the Overruling of Auston

FACTS: Confronted question of corporate campaign contributions and found them without problem and protection by the 1st Am HOLDING: o Regulatory restrictions on campaign contributions should be limited to quid pro quo bribery.

McCutcheon v. F.E. (2014)

Are Some Contributions Limits Invalid?

FACTS: wished to donate the same amounts to additional candidates but was unable to do so under a federal law establishing an aggregate-contribution limit across all candidates. HOLDING  Unconstitutional  A law restricting how much money a political donor can contribute in total to all candidates or committees is unconstitutional under the First Amendment.

 Freedom of the Press

o Typically- cases will show that that have no extra protections o Same right as everyone else o However, sometimes the press represents the rest of us

 Can set aside some special rights (like reserved seating in the court room) on basis that they are there to represent the public o Metaphorical “fourth branch” of the government  Some say, it is an additional check on the three official branches

o Press Access to Government Information

 If someone tried to get into a restricted place in the government to gain info, would not be allowed, same for the press  But sometimes let them in so they can report for the rest of the public

 Press Access to Criminal Trials

Richmond Newspapers, Inc. v. Virginia (1980) o Held that absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public o Fact that it is a trial- what happens is so important to democracy  With that comes having it open to the public  Will let press come in and have saved seats so that they can report the information back to the public  Press as their agent- 1st am right to the people  Decided this more on 1st am (public's right) rather than 6th (right to a public/ speedy trial)  1st am right to criminal trials (not pre trials)

o Governmental Demand for Information from the Press

Branzburg v. Hayes (1972)  Reporter had written articles about drug activities he had observed and declined to testify before a state grand jury (and two other cases that were related, this is all three cases in one)  Found that it did not violate the 1st am  Addresses the additional rights that 1st am gives the press  Reporters argued it was their privilege to obtain this information and not reveal it. o Important for the public to know about drug use etc. and afraid that no one will tell them information if they have to identify their sources  Court found that the 1st am does not protect the average citizen from disclosing to a grand jury and found no reason for the press to be exempt o If going to give special privilege to press, have to decide who the press is, is it every blogger?

o Laws Singling Out the Press

Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue (1983)  Signaling out press for special taxation  Even though it was benefiting the press, was concerning because if they could single them out for that, what else could they single them out for?  SS