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Policy a. Incentive or disincentive to speak?
b. Snyder permitting family members to have funeral for a few hours "does not undermine public debate"
I. Ban on nudity in drive-ins Ernoznik v. Jacksonville (1975)
a. Content-based b. Overly Broad
II. Ban signs critical of foreign gov within 500 ft of government's embassy a. Public forum banning political speech and content-based - based on topic of criticism (subject matter), even if it doesn't matter the nature of the criticism i.e.
not based on viewpoint b. Strict scrutiny analysis
III. Police can disperse demonstrators who gather within 500 ft of an embassy a. Reasonable regulation
Super high evil (terror) Dennis might justify, arguing somewhat limited restriction is justified by the gravity of the evil discounted by its probability
High value speech?
a. Speech on critical commentary of public officials Near v Minnesota b. Door to door solicitations or canvassing - nature fo speech highly valued
Historical importance of door canvassing and pamphleteering as vehicles for dissemination of ideas c. Handbills on street - time honored mode of communication Schneider d. Signs - unique City of Ladue
Low value speech: adult films renton v playtime theaters
Gov #interests a. Prevent fraud, crime, protect resident privacy b. to avoid potential trauma to patients caused by protests c. good relations w foreign countries university?
Matter of PUBLIC concern??? (352)
SS anaylsis: ix.
Hypo: State A constitution provides for popular election of all judges, including justices of state supreme court. Candidates are prohibited from announcing their views on disputed legal or political issues.
a. Content-based regulation - narrowly tailored to advance compelling interest b. Gov will assert judicial office differs from others bc judges must be impartial and appear so, and so state has interest I
impartiality. Restriction on candidate speech is designed to promote these interests by prohibing only that type of speech that is most likely to undermine the principle of impartiality,
namely, speech that appears to commit the candidate to a specific pov on how cases should be decided.
DOES IT FALL WITHIN THE FREE SPEECH CLAUSE?
Is it pure or symbolic speech?
I. CONTENT BASED REGULATION (substance or content) - VIEWPOINT, SPEAKER
STATUS, SUBJECT MATTER OF FULLY PROTECTED EXPRESSION STRICT
a. Tend to fail SS. Simon and Schuster (murderers books); only exception was voting booth case b. Subject Matter:
i. Almost always fail strict scrutiny. But see Holder v. HLP (right to vote is compelling enough)
ii. Sex programming, regulating signs, topic of fighting words, nude displays, serial murderers iii. Law requiring income by murderer book - "inconsistent w 1A if it imposes a financial burden on speakers bc of the content of their speech" Simon and Schuster (singled out income from certain activity based on certain subject matter - differential treatment of authors)
c. Viewpoint: #vpd i. Expression of a certain attitude, advocating an idea, teaching of …
ii. Ex. Snyder funeral, Porn depicting women d. Speaker status: labor organizers, religious groups i. Doesn't apply unless the distinction among speakers is a subtle means of exercising a content preference, otherwise speaker distinctions aren't presumed invalid Turner broadcasting (ban sex offenders from social media sites OK) (tie to SECONDARY effects)
e. Communicative Impact:
i. Laws barring speech that is deemed likely to cause a certain response in the audience based on its content is typically viewed to be content-based. See, e.g., Forsyth Co. v.
Nationalist Movement (1992); R.A.V. (invalidating ban on symbols that cause racial II.
1 anger/alarm); Boos v. Barry (invalidating code provision prohibiting display of sign within 500ft of embassy to bring foreign government into public odium or disrepute).
f. Ad-Hoc balancing:
g. Offensive speech - content-based Coheni, Ernoznik (ban on nudity in drive in theaters)
h. NOT #SECONDARY EFFECTS - risk of crime, predation content neutral! Renton v
Playtime Theaters (zoning)
- Applies regardless of the general subject matter of the speech; topic of speech; id of speaker; speaker's viewpoint; not a situation of gov. trying to suppress a particular message.
- Applies regardless of underlying message speaker wishes to convey a. SYMBOLIC SPEECH REGULATION OBRIEN
i. Punishment premised not on the message he attempted to convey, but on the MANNER
in which he conveyed it. (ex. damaging public property, burning draft card)
ii. The test for regulation that involves both speech and non-speech elements in the same conduct is U.S. v. O'Brien (1968)1:
1. The regulation is within the constitutional power of the government;
2. Furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression;
4. The incidental restriction on alleged 1A freedoms is no greater than essential to the furtherance of that interest.
b. Incidental restriction on expression i. Rational basis c. SPEECH REGULATION, but not due to content a municipal public park is a traditional public forum for purposes of speeches, parades and other expressive actions.
i. TRADISH PUBLIC FORUM TIME PLACE MATTER
1. Is it a #traditional public forum? Sidewalk, street, park
2. Is it NOT a TPM restriction? Speech restriction!!
a. Discretion to decide who can meet - void b. Ban leafletting on city streets and sidewalks to prevent littering - void c. Ban picketing "before or about" any residence - upheld d. Prohibit solicitation on sidewalk
3. Is it a content-neutral TPM restriction?
a. Is applicability dependent on content of the message being conveyed?
(subtle means of exercising preference?)
b. Limited discretion, aimed at secondary effects
4. Is it narrowly tailored to a substantial government interest? #tpmfactors a. Factors: nature of speech activity, sig gov. interest, scope of restriction,
availability of effective and less restrictive alternatives, alternative channels of communication left open
5. Are other channels of communication available?
a. In the absence of a showing that alternative channels are either illusory or demonstrably inadequate, general availability of traditional means of communication will suffice (media or other means)
b. Alternative channels of communication did not need to be ample or even available for low value porn Renton
6. Is it a TPM prior restraint or injunction?
a. Will be upheld if the discretion of those administering them is limited to imposing reasonable TPM restrictions b. Injunctions: stricter test than typical TPM. "provisions of the injunction burden no more speech than necessary to serve a significant government interest." Madsen v. Womens Health
The test rejects looking into legislative intent as a "hazardous matter." But see U.S. v. Eichman (1990). Sex activity zoning regulations intermediate scrutiny (secondary effects argument for being content-neutral); but total bans and severe restrictions
strict scrutiny Erzonzik v. Jacksonville ii. #DESIGNATED PUBLIC FORUM DETERMINE IF PUBLIC, APPLY SOR
1. Gov. intentionally opened to the public, dedicated to expressive activity? Or was its clear purpose to selectively choose which orgs will participate?
2. If so, government can limit forum use based on subject matter and speaker identity in order to let forum serve its purpose, so long as they are
REASONABLE and VP neutral.
3. Or TPM
iii. #NONPUBLIC FORUM RATIONAL BASIS
1. Public property opened for limited use by certain groups or for discussion of certain topics. Christian Legal Society.
2. If so - restriction is RATIONAL basis review, but cannot be VP based a. (even if content-based restriction, the nonpublic status of the forum significantly lowers the level of judicial scrutiny)
III. Broad, Vague, Prior Restraint?
a. Broad: addressed to speech, substantial overbreadth, factually established, reasonable construction not possible i. Tie to offensive speech (pg. 11)
b. Vague: as to precise conduct Holder c. Prior restraint (permit or injunction): is struck down unless necessary to advance a purported state interest Near v Minnesota The gov. has a heavy burden even if national security interest NYT v US
i. Unless unprotected category!
If it falls into an exception, it can be punished, or subject to prior restraint.
a. Bradenberg Test (fact intensive):
i. Extremely serious evil ii. Directed to (specific intent) + inciting or producing imminent lawless action (imminence)
+ and likely to cause it (grave danger)
iii. specific facts proving extremely high probability of imminent danger of the evil as an immediate result of the speech.
II. FIGHTING WORDS
a. Offensive or provocative language will be punishable only if the words are delivered in a manner and under circumstances likely to cause an immediate and serious harm - violent reaction stemming from face-to-face confrontation. Chaplinsky, Torminiello, Cohen b. But state cannot prohibit offensive words Cohen ("fuck the draft"), especially if not directed towards a person c. Government can't prohibit speech to prevent others from hearing it unless substantial privacy interests are being invaded in an essentially intolerable manner (people subject to discomfort in society)
d. #FWanalysis, #offensive speech
III. #HECKLERS VETO
a. Court balances 1A interests with the "interest of the community in maintaining peace and order on its streets." Feiner (1951)
IV. TRUE THREAT / Crime Instruction a. Individual directs threat to a person or group w intent of placing them in fear of bodily harm or death….. "intimidation is a type of true threat" Virginia v Black.
V. HATE SPEECH
a. Miller Test. Once obscene - can be punished, or prior constraint b. Non-obscene porn - speech under 1A - content-based restriction (triggered by the subject matter of the material) will be SS
i. Sex activity zoning regulations intermediate scrutiny (secondary effects argument for being content-neutral); BUT total bans and severe restrictions strict scrutiny Erzonzik v. Jacksonville
LIBEL or IIED
a. PUBLIC FIGURE - NYT:
i. Are they a public official, public figure, limited purpose public figure?
1. Requires proof of falsity and actual malice b. PRIVATE FIGURE - GERTZ
i. Private issue
1. Requires proof of falsity and negligence ii. Public issue
1. Speech related to any matter of political, social, or other concern, OR
newsworthy/ of general interest to community regulation subjected to heightened scrutiny. Snyder v. Phelps (2011)
2. Anti-homosexuality picket outside a funeral service was protected - the content of the signs involves public concern: Snyder v. Phelps c. Invasion of privacy - false light NYT test d. Disclosure victim identity e. Public Disclosure of Private Facts - Electronic Eavesdropping
Regulation of the #press? Broadcast? Radio? Internet?
COMMERCIAL SPEECH: CENTRAL HUDSON
VIII. COMPELLED SPEECH?
IX. SUBSIDY OR PENALTY?
NO: OTHER CLAUSES
a. FREE EXERCISE
NB: The first part of this outline is an attack outline with the steps/questions to go through for an issue spotter. The second part is case briefs.
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 press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ATTACK OUTLINE
1) Show government action 2) Is this government speech?
a. If yes, only restraints are EC and Equal Protection 3) Which of the four doctrines does this implicate?
Is this a natural or non-natural person? (Certain non-natural persons [companies that are closely held, etc.] still have FE rights, Hobby Lobby)
Does RFRA apply? (Answer will be yes; but if not, go to "no RFRA" under state section)
RFRA applies - strict scrutiny
Is there a substantial burden?
Is it a government decision or internal process? If yes, no burden (Lyng, Bowen)
o Is there a compelling state interest?
Is this a military rule? If yes, we're very deferential, and the military will win (Goldman)
o Is the law narrowly tailored/the least restrictive means? (Hobby
Is there a state RFRA, constitutional provision, or court case?
If yes, apply strict scrutiny
Is there a substantial burden?
(For the states, it's probably also the case that if an internal government process is involved, there's no burden)
o Is there a compelling state interest?
o Is the law narrowly tailored/the least restrictive means?
If no RFRA (Smith):
o Is the law neutral and generally applicable?
If no, then strict scrutiny (Lukumi)
o Is this a case of hybrid rights?
If yes, the strict scrutiny
Is there a previous system of individualized exemptions?
If yes, strict scrutiny
If neither hybrid rights nor system of exemptions, then no exemption
FREE SPEECH Is this a natural or non-natural person? (Non-natural still have FS rights, Citizens
Who is the speaker?
Can viewpoint discriminate; only restrictions are EC and Equal
Protection (various cases, including Summum, Johanns, etc.)
Can never viewpoint discriminate
Content discrimination allowed only in some circumstances (RAV)
Acting within the scope of her employment? If yes, no 1A protection
o Giving sworn testimony when that's not normally something she does for her job? If yes, 1A protection (Lane v. Franks)
o Acting outside the scope of her employment but using/providing information learned in employment?
This is the leaks hypo - probably 1A protection, but open question
Is it an organ of the school (e.g., newspaper)?
If yes, school can censor as long as it's reasonably related to pedagogical concerns (Kuhlmeier)
o If not an organ of the school, is the student advocating drug use?
If yes, the speech can be prohibited (Morse v. Frederick)
o If not about drugs, does it interfere with school operations or others'
If no, then the speech can't be prohibited (Tinker - but note that the schools' concerns in the balancing test will probably receive more weight post-Morse)
What kind of forum is it?
No content discrimination or viewpoint discrimination
Time/place/manner restrictions are probably allowed
Limited/designated public forum
Content discrimination allowed, viewpoint discrimination not allowed
What is the target of the restriction?
Law directly aimed at speech - strict scrutiny
General law directed at someone because of the content of their speech -
more rigorous (Holder)
o But see Reed: laws aimed directly at speech because of content -
General law unrelated to speech but with addition of expressive conduct -
Is the prohibited speech an unprotected category (libel, fighting words,
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