Freedom of Speech and Expression

1 Is the First Amendment is triggered?

a. Is there federal government or state action?
b. Abridgment issue: First Amendment says, “Congress shall make no law abridging the freedom of speech”
c. Does the regulation involve speech or expressive conduct?
i. Speech
1 Is the restriction content-based?
a. Subject-matter restriction?
i. Definition: Application of the law depends on the topic of message.
b. Viewpoint restriction?
i. Definition: Defined class of speakers, certain opinions
c. What level of scrutiny applies?
i. Strict scrutiny: Government’s restriction is constitutional only if [1] it serves a compelling
governmental interest and [2] the means used is narrowly tailored to achieve that interest.
ii. Exceptions: Does the content-based restriction involve an unprotected category of speech?
[Unprotected speech gets rational basis unless there is a viewpoint-based,
restriction that discriminates within the designated category of unprotected
speech, in which case strict scrutiny applies pursuant to R.A.V.]
1. Fighting words
a. Test: Do the words[1] tend to incite an immediate breach of the peace [Chaplinsky v. New
Hampshire] and are [2] directed to the person of the hearer? [Cohen v. California]
2. Incitement
a. Test: Do the words tend to incite imminent lawless activity such that they will bring
about the type of action the government is trying to prevent? [Brandenburg v. Ohio]
3. Commercial speech
a. Illegal: [1] Fraudulent, [2] misrepresentative, [3] deceptive, [4] tending to encourage
illegal activity.
b. Test: Commercial speech is protected if it is [1] not advertising illegal activities; and [2]
not false, misleading or deceptive. If [1] or [2] is not met, then the government must
prove there is a [1] substantial governmental interest, [2] where the means directly and
materially advances that interest and [3] is not more extensive than is necessary to serve
that interest [need not be least restrictive means]. [Central Hudson]
4. Defamation
a. Public official: If P is a public official or running for public office, P can recover for
defamation by proving [1] actual malice [with knowledge statement was false or reckless
disregard that statement was false or not]; [2] by clear and convincing evidence. [New
York Times v. Sullivan]
b. Public figure: If P is a public figure, P can recover for defamation by proving [1] actual
malice [with knowledge statement was false or reckless disregard that statement was false
or not]; [2] by clear and convincing evidence. [Curtis Publishing Co v. Butts AND
Associated Press v. Walker]
c. Private individual: If P is a private figure, P may recover for defamation by proving [1]
falsity of statement and [2] negligence by D. [Gertz v. Robert Welch, Inc.]
1. Public concern: P may recover presumed or punitive damages only by showing actual
malice.
2. Private concern: P can recover presumed or punitive damages without showing
actual malice.
5. Hate speech
a. Test: Is there a true threat of violence or intent to threaten? [R.A.V. v. City of St. Paul]
6. Obscenity
a. Test: Applying reasonable person/local community standards: [1] Do the words or
descriptions appeal to a prurient interest? [2] Are the words or descriptions patently
offensive and specifically described by the law? [3] Do the words or descriptions lack
 literary, artistic, political, or scientific [LAPS] value? [Roth v. United States; Memoirs v.
Massachusetts]
iii. If protected under the exception [i.e. doesn’t meet the test for the particular category of speech]
then it must meet strict scrutiny because it’s content-based and either viewpoint or subject matter
based.
2 Is the restriction content-neutral?
a. Definition: The law does not restrict a particular viewpoint or a particular subject matter.
b. What level of scrutiny?
i. Intermediate scrutiny: [1] the government’s interest must be important; [2] the means used must be
substantially related to achieving those governmental interests; OR
ii. If a time, place, manner restriction on content-neutral speech, then
1. Apply time, place, manner scrutiny: If so, [1] the government’s interest must be important; [2]
the means used must be substantially related to achieving those governmental interests; [3]
must leave open adequate alternative places for communication. [[1]-[2] are prongs of
intermediate scrutiny.] Cox v. Louisiana]
i. Does the regulation involve expressive or symbolic conduct?
1 Definition: Conduct is expressive if [1] there is an intent to convey a particularized message; and [2] under
the circumstances, there is a great likelihood that the message would be understood by those who viewed it.
a. Is it content-based?
i. Definition: Restriction involves either subject matter of message or viewpoint of speaker.
1. Examples: No nude dancing in general; total medium bans.
ii. What level of scrutiny?
1. Strict scrutiny: Government’s restriction is constitutional only if [1] it serves a compelling
governmental interest and [2] the means used is narrowly tailored to achieve that interest.
2. Exception: Even if it appears to be content-based, but the aim is to regulate the secondary
effects, then it’s shifted over to content-neutral, and gets O’Brien scrutiny. [Paris Adult
Theatre; Barnes]
a. Has only been applied to nude dancing
b. Is it content-neutral?
i. Definition: Viewpoint and subject matter neutral
ii. What level of scrutiny?
1. Apply O’Brien scrutiny: [1] “further an important or substantial government interest;” and [2]
involve an “incidental restriction on alleged First Amendment freedoms that is no greater than
is essential to the furtherance of that interest;” [3] “unrelated to the suppression of free
expression;” [4] a government regulation must be within the constitutional power of the
government [federal government’s necessary and proper clause; state government’s regulation
of health, safety and welfare]; [5] must be closely tailored to its ends, but the government
need not employ the least restrictive alternative. [O’Brien v. United States]
2 If not expressive or symbolic conduct?
a. What level of scrutiny?
i. Apply rational basis: The government must have a [1] legitimate purpose and [2] use a means that
is rationally related to achieving that purpose; can be satisfied even if conceivable government
purposes are hypothesized after the fact; a minimum level is applied because anything less would
turn the equal protection claim into a political question and render the legislature and executive
self-policing; can be over-inclusive and under-inclusive; one-step-at-a-time legislation.
d. If restriction involves speech or conduct on government property, what forum?
i. Public forum
1 Definition: Government properties that the government is constitutionally required to make available for
speech – i.e. sidewalks and public parks
2 What level of scrutiny?
a. Time, place, manner test [U.S. Postal Service v. Council of Greenburgh Civic Associations]
ii. Designated public forum
1 Definition: Government properties that the government could close to speech, but chooses to open to
speech.
2 What level of scrutiny?
b. Time, place, manner test [U.S. Postal Service v. Council of Greenburgh Civic Associations]
 iii. Non-public forum
3 Definition: Government properties that the government constitutionally can and does close to speech. The
government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint
neutral.
4 Subject matter restrictions and speaker identity restrictions permitted; must be viewpoint neutral; use time,
place, manner test [ISKCON v. Lee]
a. Airport
b. Places of employment – federal
5 What level of scrutiny?
a. You can have subject matter restrictions but not viewpoint restrictions
i. If subject matter restriction, apply rational basis
ii. If viewpoint restriction, apply strict scrutiny
1. Example: Fire station – Can have restrictions that says you can’t talk about religion in general
[subject matter] but can’t have restrictions that specifically say you can’t advocate a certain
religion [viewpoint]
e. Are there any facial challenges such that the restriction should be unconstitutional?
i. Prior restraints?
1 Is there a license/permit/court order for speech or expressive conduct required?
a. The government can require a license for speech only if there is an important reason for licensing and
clear criteria leaving almost no discretion to the licensing authority.
i. Unfettered discretion: Discretion to enforce restriction cannot be left in one person’s or one
agency’s hands. [Cox v. Louisiana]
2 Apply strict scrutiny.
ii. Vague?
1 A law is unconstitutionally vague if a reasonable person [or person of ordinary intelligence] cannot tell
what speech is prohibited and what is permitted.
2 Apply strict scrutiny. [Smith v. Goguen]
iii. Overbroad?
1 A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows
to be regulated.
2 Apply strict scrutiny. [Gooding v. Wilson – didn’t use strict scrutiny but was overbroad]
iv. Analysis: [1] Show how the regulation is a prior restraint/vague/overbroad; [2] analogize to the cases; [3]
analyze whether the regulation can still be constitutional if applied to D if it were more narrowly drafted [i.e.
meets the test for that category of speech]; [4] if overbroad/vague or unfettered discretion in prior restraint,
conclude it will be held unconstitutional even as to D.
b. Additional questions to ask, post-analysis:
i. Does history in fact support special protection of First Amendment rights?
ii. What is the scope of the “freedom of speech” enshrined by the Framers of the Bill of Rights?
iii. What evils of pre-Constitution history was the First Amendment designed to avert?
iv. Why might government regulation of speech be more suspect than governmental regulation of other activities?
1 The incumbent regime will be biased in its own favor against dissidents and challengers.
a. Can this argument be broadened to reach cultural or social dissent as well?