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First Amendment

A. Free Speech Methodology

1. Content Based vs. Content Neutral Laws
- Rule: if you have an exam question and you go blank use: content based restrictions on speech
generally must meet strict scrutiny.
There are 2 alternative ways of finding that a law is content based.

- Subject Matter restriction - is where the application of the law depends on the topic of the

- Viewpoint restriction - application of the law depends on the ideology of the message.
Content Neutral
Only have to meet intermediate scrutiny. If a law applies to all speech no matter its ideology or viewpoint.
example, all parades and demonstrations in the park not allowed.
Vagueness and Overbreath
1. Vagueness - a law is unconstitutionally vague if a reasonable person cannot tell what is
prohibited and what is permitted.
2. Overbreath - a law is unconstitutionally overbroad if it regulates substantially more speech
than the constitution allows to be regulated.
3. Prior Restraints - a judicial order on an administrative system before it occurs. Examples, court
order preventing speech must meet strict scrutiny. (preliminary injunction, restraining order).
Licenses or permit systems - the government requiring a permit or license for speech, only if it
has an important reason and only if there are clear criteria leaving almost no discretion to the
licensing authority (SCOTUS) also procedural safeguards, like prompt determination of requests/
denials and judicial review of denials.
4. Symbolic Speech - the government may regulate conduct that communicates, if it has an
important interest unrelated to the suppression of the message and if the impact on
communication is no greater than necessary to achieve the governments purpose.
Examples: Flag burning is constitutionally protected speech, draft card burning is not protected
speech, nude dancing is not protected speech, burning a cross is protected speech unless it done
with the intent to threaten (Virginia v. Black). The government may limit contributions but it
cannot limit expenditures in election campaigns.
5. Anonymous Speech- it is protected by the constitution. Anonymous literature or leaflets. There
is a first amendment right to speak anonymously and without disclosing ones identity.

B. Unprotected Speech or Less Protected

1. Incitement of illegal activity is unprotected by the FA (Brandenburg) Rule: the government may
punish speech if there is a substantial likelihood if imminent illegal activity and if the speech is
directed at cousin imminent illegal activity.
2. Obscenity and sexually oriented speech - (Muti-State Questions Likely)
3 Part Test (Miller), Obscenity = (1) The material must appeal to the puriant interest, (2) the
material must be patently offensive under the law prohibiting obscenity (3) taken as a whole the
material must lack serious redeeming artistic, literary, political, or scientific, value. Social value is
determined by a national value not just in the community. Purinat inters is a community standard
not national for part one the standard.
Rule: Local governments may use zoning laws to regulate the location of adult bookstores and
movie theaters.
Rule: The Government may prohibit child pornography even if it is not obscene. Children must be used in
its production. The government cannot punish private possession of obscene material. But, the person can
be punished for having child pornography in private possession.
Rule: The government can seize the assets of businesses convicted of obscenity laws. (Alexander).
Rule: Profane an indecent speech are generally protected by the FA. (Cohen v. California) Fuck the
Draft (Reno v. ACLU) Communication decency act for the internet unconstitutional.
Television & Radio
(FCC v. Pacifica) George Carlin - radio station can be punished because broadcast media is uniquely
intrusive to the home and accessible to children. Applies to over the air broadcasts.
Schools Exceptions
(Bethels School District v. Frazier) - No profanity but filled with sexual innuendo. SCOTUS, schools are
responsible for teaching children thus they can regulate students speech. Bong hits for Jesus school can
discourage messages for illegal drug use.
Commercial Speech
False and deceptive ads and ads for illegal activities are unprotected by the first amendment. The Govt
can prohibit and punish.
Even true ads that inherently risk deception may be prohibited.
States may prohibit professionals from advertising or practicing under trade names. (Optometrists)
States may prohibit in person solicitation for lawyers. (Lawyers)
Right to send letter solicitation is allowed. Written record and deception is less likely, also people do
throw away junk mail. Attorney in person solicitation for pro-bono is allowed.
State may not prohibit accountants for engaging in in-person solicitation of clients for profit.
Other government regulation of commercial speech is allowed if intermediate scrutiny is met. Assuming
that the commercial speech is not illegal, deceptive or risk of deception.

Key case Florida law, lawyers cannot solicit accident victims for 30 days. Upheld by SCOTUS.
defamatory speech, libel and slander are not protected by the FA. (Sullivan) The FA limits recovery for
a.) If Plaintiff is a public official, or running for office, Plaintiff can win for defamation only: by proving
with clear and convincing evidence falsity of the statement and actual malice.
b.) If P is public figure same rule applies for the public officials. Public figure = access to the media or
c.) If P is a private figure and the speech involves public concern the P can recover compensatory
damages by proving falsity of the statement and negligence on the part of the speaker. Punitive damages
recover actual malice.
d.) If the P is a private figure and the speech does not involve a matter of public concern. The P can
recover Punitive or Presumed damages without proof of actual malice.
Privacy and FA (Media)
a.) Rule: State may not allow liability for the truthful reporting of information lawfully obtained from
public records. (Rape victim reporting).
b.) The government may restrict its own dissemination of information so as to protect privacy. Criminal
trails are only exception. Other than this the Government has broad latitdue to restrict infomration.
No FA Protection for the speech of government employees in the scope of their duties while on the job.
(Garcetti v. Saballius).
Other government regulation of speech based on content must meet strict security.
C. What places are available for speech (TPM)
Right to use government property for speech (Categories)
1. Public Forums - are government properties that the government is constitutionally required to make
available for speech. (sidewalks and parks are classic public forms).
a.) To regulate, the regulation must be subject matter and viewpoint neutral or it must meet strict
b.) the regulation must be a TPM regulation that serves an important government purpose and
leaves open adequate alternative places for communication.
Regulation of public forum Content based - Strict scrutiny, Content Neutral - Intermediate, TPM
restriction defined above.
c.) Government regulation of speech in public forums does not have to use the least
restrictive method.
2. Designated Public Forums - government properties that could have been closed to speech but that the
government chooses to open to speech. Schools for example opening on evenings and weekends opening
for groups. Same rules as public forums.

3. Limited Public Forums - Properties that open only for the following speakers and only for the
following topics. Can regulate so long as it is reasonable and viewpoint neutral. (CLS v. Martinez)
4. Non-Public Forums - Government properties that can and does close to speech. Same as limited, they
can regulate non-public forums so long as the regulation is neutral and reasonable. For example military
bases are not open to the public. Areas outside of prisons and jails are non-public forums. Sidewalks on
post office property are non-public forums. Airports are non-public forums. (Krishnas) Solicitation of
money is not allowed but cant ban distribution of literature. NO FA right to use private property for
speech purposes most important is shopping centers.
D. Freedom of Religion
Free exercise clause
a.) cannot be used to challenge a neutral law of general applicability (Smith v. Employment Division)
Peyote case, ruled against native americans for unemployment had to pass drug test. It does not matter
how much the governments law conflicts as long as it is broad and content neutral.
Not content neutral would have to meet strict scrutiny.
b.) The government cannot deny benefits to those who quit their jobs for religious reasons. (Sherbert)
Work on Saturday sabbath.
Establishment Clause
a.) Test: (LEMON) 3 part test: Unconstitutional if it fails any prong of the test. (1) there must be a secular
purpose for the law (2) the primary effect must be to neither enhance or advance religion [ACLU v.
Allegheny county] (3) there cannot be excessive government entanglement with religion. (The
government cannot pay for the teachers salaries in religious schools).
SEX (Secular purpose) (Effect cannot be enhance or advance)(eXcessive entanglement)
b.) The government cannot discriminate among religions or against religious speech unless it meets strict
c.) Government sponsored religious activities are not allowed (school prayer not allowed). Clergy
member prayer at graduation not allowed. Student delivered prayers are not allowed. A moment of silent
prayer is not allowed. If a school chooses to open its institution or facility to student or community groups
it cannot discriminate against religious groups, it would be an impermissible content based restriction.
d.) Government may give aid to parochial schools so long as it is not actually used in religious
instruction. (like giving computers to all schools in the state). (Ohio School district)