KEY QUESTIONS

Speech

• Is it Constitutionally Protected Conduct?

• Is it Void for Vagueness? (Overbreadth? Over/under inclusive?)

• Chill speech?

• Is it outside the First Amendment?

  • Incitement, Obscenity, Libel, Fighting Words, …

• Tort

• Privacy

• Is the government acting as…

  • Employer

  • Educator

  • Patron ($$)

  • Speaker

• Is this Commercial Speech?

• Expressive Conduct? Spence test?

• Is this Content-Neutral?

  • Aimed at Speech: SS

  • Neutral: IS

  • Incidental: Rational Basis

• Is the statute part of a neutral, general regulatory scheme? (Wisconsin v. Mitchell, Glickman, RAV?)

• Public Forum:

  • Traditional

  • Designated

  • Limited

  • Non-public forum

• Time place and manner regulation – IS

• Does it involve:

  • Right not to speak

  • Right to speak anonymously

  • Right to expressive association

• Injunction as TPM? (Heffron)

Religion:

• Does it discriminate against religion?

• Is it about an exemption to a facially neutral rule? (FE)

• Does it Establish a religion:

  • Subsidies

  • Use of Public Spaces

  • Teachers

  • School Prayers

  • Curriculum

  • Public Displays

Unresolved issues:

Internet, Cyber-bulling, Political, New Categories, Balancing vs. Categories, Snowden (Holder, Pentagon Papers), Revenge Porn, Nude photos/videos w/o consent. Nudity (“Free the nipple”). Jennifer Lawrence “illegal to call people fat.”

Speech

Outside First Amendment

• Speaker and Audience on Same Side

  • Incitement (Brandenburg): (1) Specific Intent (Hand); (2) Grave harm imminent (Holmes C+PD); (3) Likelihood of causing illegal action (Schenck approach)

  • How to make a bomb (Progressive)

• Speaker and Audience on Opposite Side

  • Fighting Words (Chaplinsky)

  • Offensive Words (Cohen) – OK unless directed at a person and likely to provoke violent response)

  • Hostile Audience (Terminiello) – No Heckler’s Veto, audience cannot censor speaker

  • Permits need Standards (Kunz, Forsyth)

  • NO group libel (Beauharnais)

  • Hate speech protected (Collin in Skokie, Nazis)

  • Hate speech Statute must be neutral and narrow. Can’t viewpoint discriminate within statute. (RAV)

  • Hate CRIME statute ok, b/c not speech (WI v. Mitchell)

• Tort

  • Libel by Press requires (1) public official; (2) “actual malice”; (3) actual damages (NYT v. Sullivan)

    • Applies to Public figures (Curtis)

    • Private individuals must be (1) negligence; (2) false; (3) compensatory damages (malice -> + punitive) (Gertz)

  • IIED requires false statement + actual malice (Huster)

    • No IIED if matter of public concern (Snyder)

• Privacy

  • Privacy requires knowledge of falsity or reckless disregard (Time v. Hill)

  • No liability for broadcasting true information in the public record (Cox v. Cohn, Florida Star)

  • Even if information illegitimately acquired, still 1st Am protection (Bartnicki)

• Press

  • No special treatment in courts (Cohen v. Cowles)

  • Prior Restraint: High burden on government to prove (Pentagon Papers)

  • Jury gag order: must (1) otherwise jeopardize fair trial; (2) no other means; (3) would actually assure fairness (Stuart)

• Sex

  • Obscenity: (1) prurient interest; (2) patently offensive; (3) SLAPS (Roth)

  • Nudity

    • Can’t discriminate based on Nudity (Erzoznik)

    • Zone for diffusion (Young v. American Mini Theaters), for concentration (Renton), but needs evidence (Alameda)

  • Child porn illegal (Ferber, Osborne) but virtual/simulated OK (Ashcroft v. Free Speech Coalition)

  • Regulate Indecency:

    • OK in broadcasts (Pacifica); not Phone (Sable); not mail (Bolger); OK in leased cable operators (Denver v. FCC); not normal cable (Playboy); not the Internet (Reno v. ACLU) and must use least restrictive means possible (Ashcroft v. ACLU II)

  • No new categories (US v. Stevens – Crush videos)

Government as Actor

• Government as Educator: Generally OK to regulate classroom, less OK to regulate extracurricular

  • “It can hardly be argued that students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” – Tinker.

  • Has to be more than just uncomfortable (Tinker)

  • Disruptive, non-political speech OK to regulate (Bethel v. Fraser)

  • Can censor school newspaper – imprimatur of school (Hazelwood)

  • Field trips part of school day (Morse v. Frederick)

• Subsidies: Government is Patron

  • Fairness Doctrine: Yes to Broadcasters (Red Lion), no to newspapers (Tornillo editorial discretion). Moot after repealed by FCC

  • Conditions on Funding

    • Can Condition: tax code incentives (Regan v. TWR), Abortion gag rule (Rust), Discretionary artistic determinations (NEA v. Finley), Library Filters (US v. ALA)

    • Cannot Condition: 1A Violation (Speiser), Too much leverage (FCC v. LWV), View-point discrimination (Legal Services v. Velazquez)

• Government as Employer

  • Issues: Public v. Private Speech? Acting as employee or individual? Balancing interest of individual vs. employer. Public or non-public concern?

  • Can be fired for: criticizing boss within workplace (Connick); work memos (Garcetti); private conduct with a public concern (San Diego v. Roe)

  • Cannot be fired for: Public letter in newspaper (Pickering); political remarks (Rankin); speeches unrelated to job (US v. National Treasury Employees Union)

• Government as Speaker

  • Rust: abortion gag rule

  • Johanns: Ads

Commercial Speech

• Special Rules: (1) Requirement of truth, legal, and non-misleading; (2) No overbreadth issue; (3) Compelling warnings, etc., OK; (4) No worry of Chilling effects

• Central Hudson (1980):

  • (1) Not illegal, misleading;

  • + Intermediate Scrutiny: (2) Substantial government interest; (3) Directly advanced; (4) Narrowly tailored [Least restrictive? Alternative Channels?]

Content-Neutral vs. Content-Based Statutes

• O’Brien Tracks:

  • [Viewpoint Discrimination: Strict Scrutiny]

  • Track 1 Aimed at Speech: Strict Scrutiny

    • Almost all cases struck-down, except Burson (election integrity) and Humanitarian Law Project (terrorism)

  • Track 2 Content-neutral with incidental effects: Intermediate Scrutiny

    • Both Content-Neutral laws...

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