Constitutional Law - First Amendment Rights

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First A. Freedom of Speech - Content vs. Conduct (time, space & manner regs)
--> CONTENT-BASED Restrictions on speech:

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- Generally must meet STRICT SCRUTINY (necessary to prove a compelling state interest and narrowly drawn to achieve that end w/ no less restrictive alternative available).
- Presumptively unconstitutional for govt to place burdens on speech b/c of its content
(EXCEPTIONS: obscenity, defamation & “fighting words” – unprotected categories of speech)

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First A. Freedom of Speech - Content vs. Conduct (time, space & manner regs)
--> CONTENT-NEUTRAL Restrictions on speech:

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- Generally need only meet INTERMEDIATE SCRUTINY (advances important interests unrelated to suppression of speech & does not burden substantially more speech than necessary to further those interests)

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First A. Freedom of Speech - Content vs. Conduct (time, space & manner regs)
--> CONDUCT Restrictions on speech:

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- SC: to avoid chaos & protect other govt interests, govt is allowed to adopt REASONABLE TIME, PLACE, and MANNER regulations on speech-
- Related conduct in public forums and designated public forums (regs must be content neutral, narrowly tailored to serve a significant governmental interest, & leave open alt channels of communication.)

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First A. Freedom of Speech - Content vs. Conduct (time, space & manner regs)
--> Time, Space, & Manner Restrictions—Regulation of Conduct

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All speech is conveyed through physical action; extent to which govt may regulate speech-related conduct depends on whether forum involved is public, designated public, or a nonpublic forum

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First A. Freedom of Speech - Content vs. Conduct (time, space & manner regs)
--> Time, Space, & Manner Restrictions—Regulation of Conduct: Public Forums & Designated/Limited Public Forums

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- Govt properties, must make available for speech; may regulate speech/assembly w/ reas time, place, & manner regs that must:
i. Be content neutral (subj matter (topic) & viewpoint (ideology))
ii. Narrowly tailored to serve sig govt interest (intermediate scrut)
iii. Leave open alt channels of communication

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First A. Freedom of Speech - Content vs. Conduct (time, space & manner regs)
--> Time, Space, & Manner Restrictions—Regulation of Conduct: Nonpublic Forums:

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- Govt can regulate subject matter of speech in nonpublic forums so long as the regulation is:
i. Viewpoint neutral; &
ii. Reasonably related to legitimate public purpose
Examples: Court in session, Military bases, Areas outside prisons & jails, Advertising space on city buses, sidewalks on post office prop, Airports

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First A. Freedom of Speech
- No 1st A. right of access to private property for speech purposes

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Includes private shopping centers

Front 8

First A. Freedom of Speech
--> Reasonableness of Regulation: Void for Vagueness or Overbroad

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1. Void for Vagueness Doctrine – a law is unconst vague if it fails to give persons reasonable notice of what is prohibited. Law must clearly define what speech is regulated, so persons know what speech is permissible.
2. Overbroad Regulation Invalid – a law is unconstitutionally overbroad if it regulates substantially more speech than the Const. allows to be regulated.
3. Cannot Give Officials Unfettered Discretion - void on its face - must be standards for applying law

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First A. Freedom of Speech
- Symbolic Speech (= Symbolic Conduct):

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- Govt can reg conduct that communicates if:
i. It has an important interest unrelated to suppression of the message &
ii. The impact on communication is no greater than necessary to achieve the govt’s purpose.

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First A. Freedom of Speech
- Symbolic Speech (= Symbolic Conduct) EXAMPLES:

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i. Flag burning is constitutionally protected speech.
ii. Draft card burning is not protected speech.
iii. Nude dancing is not protected speech.
iv. Burning a cross is protected speech unless it’s done with the intent to intimidate or threaten.

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Contribution limits in election campaigns are constitutional; expenditure limits are unconstitutional

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Govt may const limit the amount given to a candidate for office or a committee for office, but the govt cannot limit ballot initiatives & cannot limit how much person can donate total.

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1st A. Freedom of Speech
- Prior Restraints / Gag Orders

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- Any govt reg that would prevent a communication from reaching the public; generally disfavored. 2 Requirements:
a. Content-based prior restraint of speech must meet Strict Scrutiny.
b. Certain Procedural Safeguards must be provided
i. Must be narrowly drawn, reasonable, and definite,
ii. Restraining body must seek an injunction, &
iii. There must be a prompt & final judicial determ of validity of restraint.

Front 13

1st A. Freedom of Speech
- Gag orders on the press to prevent prejudicial pre-trial publicity =

Back 13

IMPERMISSIBLE PRIOR RESTRAINTS unless meet strict scrutiny

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1st A. Freedom of Speech
- Licensing schemes

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- Govt can require a license/permit for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
- Must contain procedural safeguards such as prompt determination of requests for licenses and judicial review

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1st A. Freedom of Speech
- Unprotected/Less Protected by 1st A – Regulation/Punishment b/c of Content:

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i. Incitement of Illegal Activity
ii. Obscenity – Unprotected Speech
iii. Defamation
iv. True Privacy Actions
v. Commercial Speech

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1st A. Freedom of Speech
- Incitement of Illegal Activity

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- Govt may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality

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1st A. Freedom of Speech
- Obscenity

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Depiction of sexual conduct that, taken as a whole by the average person, applying contemporary community standards: (3-pt test)
a. Appeals to the prurient interest in sex; (shameful/morbid int in sex)
b. Portrays sex in a patently offensive way; and
c. Does not have serious literary, artistic, political, or scientific value, under a national standard.

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1st A. Freedom of Speech
- Defamation

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1. If P is a public official or running for public office or a “public figure” (general fame/notoriety/involvement in particular controversy), P can recover by proving: falsity of the statement & actual malice.
2. If P is a “private figure” & the matter is of “public concern,” that state may allow P to recover for defamation by proving: falsity & negligence by D. BUT P may recover presumed/punitive dams by showing actual malice.
3. If P is the “private figure” and the matter is NOT of “public concern,” P can recover presumed or punitive damages without showing actual malice.

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1st A. Freedom of Speech
- True Privacy Actions

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1. Media cannot be sued for pub a true fact lawfully obtained from govt, public record, or otherwise released to public
2. Media cannot be sued for broadcasting a tape of an illegally intercepted call, if media did not participate in the illegality & involves matter of public imp

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1st A. Freedom of Speech
- Commercial Speech

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1. Advertising for illegal activity, & false & deceptive ads, not protected.
2. True commercial speech that inherently risks deception can be prohibited.
a. Govt may prevent professionals from advertising or practicing under a trade name. Govt may prohibit attorney, in-person solicitation of clients for profit. BUT If offering free representation, solicitation protected. Can send letters to prospective clients
c. Govt may not prohibit accountants from in-person solicitation of clients for profit.

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1st A. Freedom of Speech
- Restriction on Comm Speech valid? Steps to analyze:

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1) whether speech concerns lawful activity, not misleading/ fraudulent,
2) meets intermediate scrutiny (serves substantial govt interests, directly advances asserted interest, narrowly tailored to serve that interest, BUT does not need to be the least restrictive alternative.)

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Freedom of the Press
- Publishing Truthful Information

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- About a matter of public concern: strict scrutiny
1. Publishing true fact of public record: newspaper cannot be sued for pub a true fact once it is lawfully obtained from the public record.
2. Info unlawfully obtained: must be a matter of public concern & meet strict scrutiny

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Freedom of the Press
- 1st A. fundamental right to attend criminal trials

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(strict scrutiny) but right may be outweighed by judge’s overriding interest.

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Freedom of Association

Back 24

Laws that prohibit or punish group membership must meet STRICT SCRUTINY. To punish membership in a group it must be proven that the person:
1. Actively affiliated with the group;
2. Knowing of its illegal activities; and
3. With the specific intent of furthering those illegal activities.

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Freedom of Religion
- 2 applicable clauses

Back 25

Both the Free Exercise & Establishment Clauses apply to the states under the 14th A.

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Freedom of Religion
- The Free Exercise Clause: Prohibits govt from punishing (denying benefits to or imposing burdens on) someone on the basis of her religious beliefs. TEST:

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- Cannot be used to challenge a NEUTRAL law of GENERAL APPLICABILITY (law that applies to everyone in the state).
- Courts may not find religious beliefs to be false.
- Govt cannot deny benefits to those who quit their jobs because of religious reasons (unfairly forcing her to choose between religion & income)

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Freedom of Religion
- The Establishment Clause: Prohibits laws regarding establishment of religion. TEST:

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1. Test: (Unconst if any of these are found) [“SEX”]
a. There must be a SECULAR purpose for the law
b. The EFFECT must be neither to advance nor inhibit religion (govt must not symbolically endorse religion or a particular religion)
c. There must not be EXCESSIVE entanglement with religion
2. Govt cannot discriminate against religious speech/show preference for one religion or other, unless strict scrutiny is met.