Law Outlines First Amendment Law Outlines
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Policy
Incentive or disincentive to speak?
Snyder permitting family members to have funeral for a few hours “does not undermine public debate”
Hypos:
Ban on nudity in drive-ins Ernoznik v. Jacksonville (1975)
Content-based
Overly Broad
Ban signs critical of foreign gov within 500 ft of government’s embassy
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
Strict scrutiny analysis
Police can disperse demonstrators who gather within 500 ft of an embassy
Reasonable regulation
Also:
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?
Speech on critical commentary of public officials Near v Minnesota
Door to door solicitations or canvassing – nature fo speech highly valued Historical importance of door canvassing and pamphleteering as vehicles for dissemination of ideas
Handbills on street – time honored mode of communication Schneider
Signs – unique City of Ladue
Low value speech: adult films renton v playtime theaters
#breachofpeace
Gov #interests
Prevent fraud, crime, protect resident privacy
to avoid potential trauma to patients caused by protests
good relations w foreign countries
university?
Matter of PUBLIC concern??? (352)
SS anaylsis:
DOES IT FALL WITHIN THE FREE SPEECH CLAUSE?
Is it pure or symbolic speech?
YES:
CONTENT BASED REGULATION (substance or content) – VIEWPOINT, SPEAKER STATUS, SUBJECT MATTER OF FULLY PROTECTED EXPRESSION STRICT SCRUTINY
Tend to fail SS. Simon and Schuster (murderers books); only exception was voting booth case
Subject Matter:
Almost always fail strict scrutiny. But see Holder v. HLP (right to vote is compelling enough)
Sex programming, regulating signs, topic of fighting words, nude displays, serial murderers
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)
Viewpoint: #vpd
Expression of a certain attitude, advocating an idea, teaching of …
Ex. Snyder funeral, Porn depicting women
Speaker status: labor organizers, religious groups
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)
Communicative Impact:
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 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).
Ad-Hoc balancing:
Offensive speech – content-based Coheni, Ernoznik (ban on nudity in drive in theaters)
NOT #SECONDARY EFFECTS – risk of crime, predation content neutral! Renton v Playtime Theaters (zoning)
CONTENT NEUTRAL
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
SYMBOLIC SPEECH REGULATION OBRIEN
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)
The test for regulation that involves both speech and non-speech elements in the same conduct is U.S. v. O’Brien (1968)1:
The regulation is within the constitutional power of the government;
Furthers an important or substantial governmental interest;
The governmental interest is unrelated to the suppression of free expression;
The incidental restriction on alleged 1A freedoms is no greater than essential to the furtherance of that interest.
Incidental restriction on expression
Rational basis
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.
TRADISH PUBLIC FORUM TIME PLACE MATTER
Is it a #traditional public forum? Sidewalk, street, park
Is it NOT a TPM restriction? Speech restriction!!
Discretion to decide who can meet – void
Ban leafletting on city streets and sidewalks to prevent littering – void
Ban picketing “before or about” any residence – upheld
Prohibit solicitation on sidewalk
Is it a content-neutral TPM restriction?
Is applicability dependent on content of the message being conveyed? (subtle means of exercising preference?)
Limited discretion, aimed at secondary effects
Is it narrowly tailored to a substantial government interest? #tpmfactors
Factors: nature of speech activity, sig gov. interest, scope of restriction, availability of effective and less restrictive alternatives, alternative channels of communication left open
Are...
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