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Law Outlines Constitutional Law Outlines

Freedom Of Speech How Government Restricts Speech Outline

Updated Freedom Of Speech How Government Restricts Speech Notes

Constitutional Law Outlines

Constitutional Law

Approximately 149 pages

I handwrote my notes for this entire class and then used the notes to create this outline in preparation for the Final Exam. ...

The following is a more accessible plain text extract of the PDF sample above, taken from our Constitutional Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Freedom of Speech- How Government Restricts Speech-Modes of Abridgment & Standards of Review

There are ways to do it and ways not to!

Section 1. Distinction between Content-Based & Content-Neutral Regulations

Content neutral: usually get intermediate scrutiny

Content-based: usually strict scrutiny

If gonna have/argue RTPM then it must be content neutral

Viewpoint restrictions:

Paradigm violation of 1st Amend. – def get strict scrutiny

Subject Matter Restrictions:

Generally given SS

Police Dept. v. Mosely

All ideas are neutral, & can’t choose one or the other
Gov. can’t select which issues are worth discussing or debating in public facilities
If gonna regulate picketing, don’t give exceptions, regulate all picketing equally

Simon & Schuster v. NY State Crime Board

The law was VERY content based, restricted/prevented criminals from profiting from books written about the crime
If interest was to compensate victims then should go after the criminals assets not income derived solely from expressive activities
The law, even if compelling interest, must be narrowly tailored which this wasn’t, & it must be not under or over inclusive

Burson v. Freeman

Tenn. had restriction on picketing, handing out political info, etc w/in 100 feet of a polling location
The gov. interest of protective voters from intimidation is compelling
Plurality said passed SS
Dissent;
Said was content based & shld have failed SS where disallowed only political expression not other subj, matters like religion, art, etc.

Republican Party of Minnesota v. White

Obviously content-based & so get SS, but was a close vote
CANT RESTRICT ANYONE FROM SPEAKING OUT POLITICALLY

Communicative Impact on the Audience

Boos v. Barry
Good case for definition of “secondary effects”

It is not about the effect on the immediate listener or their reaction to the speech- it is futher down the line

Content-Neutral Laws

2 Types:
Law aims at conduct, not speech, but may have the effect of suppressing speech when applied to a “symbolic” or “expressive” version of such conduct
Law aims at expression, but for reasons unrelated to its content. “Reasonable Time Place Manner” regs of speech in public forum most common

Total Medium Bans

Are content-neutral but can end up suppressing all speech and can be problematic but some have been upheld and some shot down

Content-Neutral Regulation & Symbolic Conduct

United States v. O’brien STYLE (Cantrell says good test but wrongly decided)

Draft-Card burning case

1965 Amend said had keep draft card on you (which if didn’t could be prosecuted) but it also allowed punishment for the burning, destroying of ANY draft card.

2 Questions Here:

Does the conduct constitute “symbolic speech”?
If yes then have to do following analysis:
A gov regulation is sufficiently justified if:

It is w/in the const. power of gov

It furthers an important or subst. intst

If the gov. interest is unrelated to the suppression of free expression; AND

If the incidental restriction on alleged 1st amend expression is no greater than is essential to the furtherance of that interest (not LRMs)

Use O’brien test where the regulation is NOT targeting speech.

If yes and protected speech, then get off O’Brien and apply SS

Holder v. Humanitarian Law Project

Case was abt giving aid by means of speech (advice, training) to foreign terrorist groups
Law aimed at conduct (which can turn into speech)
Both Majority & Dissent used SS cause the law targeted conduct which was speech
Even if you goal is not to advance the terrorists by giving aid if frees up other resources which does further illegal terrorit aims so upheld.
Dissent:
Argued compelling interest would have required proof of “intent to further the illegal aims’ before prosecute
Just wanted more proof on furthering the compelling interest

Flag Desecration

3 “S” Cases: Spence, Street, Smith
Laws written about what doing to a symbol
“every time the court struck down a conviction & law based on flag burning
Doesn’t seem like can ever have a valid law banning flag burning cause can’t articulate a sufficient gov. interest
Spence v. Washington
Definition of Symbolic Speech:

An intent to convey a particularized message was present (trying say something by my conduct, an audience involved)

Likelihood that the message would be understood by those who viewed it

Ask if the conduct is symbolic 1st, if yes then use Obrien Test which will determine if it is protected or not
Texas v. Johnson
TX should have prosecuted him under theft & arson, not for the Texas “flag desecration” law
Gov. on safest base when it attempts to regulate conduct because of its characteristics (ie. act of burning), but gov. can’t prohibit or regulate conduct because of its expressive nature/content.
Gov. Asserted Interests:

Preventing breach of peace (absurd, nothing happened)

Preserving the Flag as a symbol of nationhood & national unity

The law was out to punish expressive speech; and it was content based- it adopted a particular point of view
Gov cant punish ideas which offend
Gov can’t prescribe what shall be orthodox, and what we should believe or feel
Bedrock 1st Amend Principals;

“marketplace of ideas”: you can question the national unity, it’s a part of the freedom...

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