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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
(1)Viewpoint restrictions: Paradigm violation of 1st Amend. - def get strict scrutiny
(2)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 Minn. had a law which forbade judges running for office to express legal or political views Obviously content-based & so get SS, but was a close vote CANT RESTRICT ANYONE FROM SPEAKING OUT POLITICALLY
Speaker Restrictions: not always considered the practical equivalent of content restrictions, so long as the ground on which speakers are classified can be described as related to some aspect of their status independent of their beliefs or points of view
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: (1) 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 (2) 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: (1) Does the conduct constitute "symbolic speech"?
(2) If yes then have to do following analysis: A gov regulation is sufficiently justified if: (1) It is w/in the const. power of gov (2) It furthers an important or subst. intst (3) If the gov. interest is unrelated to the suppression of free expression; AND If related to suppression of FREE PROTECTED expression then get Strict Scrutiny (unless unprotected speech)
(4) 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. Ask: Is it related to the suppression of expression?
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: i.
An intent to convey a particularized message was present (trying say something by my conduct, an audience involved)
ii. Likelihood that the message would be understood by those who viewed it If symbolic speech then Obrien test, unless the regulation is related to expression, cause then get SS.
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 So this is obviously an interest which is related to expression
& so fail 2nd prong of Obrien and get SS
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 which the flag symbolizes. When you try to protect a symbol its because of what the symbol expresses PERIOD!
Aftermath of Texas v. Johnson U.S. v. Erickman Congress passed law which said yes burning flag is "speech" but said it is outside the 1st Amend cause tried say law was protecting the "physical integrity" of the flag No Obrien, get SS- since directed at public conduct of destroying the flag, then it is expressive & is content based & fails SS
Bottom Line: YOU CAN BURN THE FLAG
Nude Dancing Barnes v. Glen Theater Ban on Public nudity upheld 5-4 A bar, nightclub, is public and it doesn't matter that pay to get in This is aimed at conduct-but it is "expressive conduct (Cantrell view) Requist: Says not related to "suppression of expression" But here it extended the law beyond nudity-as applied it was directed as expressive conduct (since required pasties & g-strings) Legislative history showed aimed at morality Scalia: Said 1st Amend not at all implicated and it was all about conduct only Said laws of general applicability have no 1 st Amend Implication Souter: Says Obrien appropriate test but morality not the state interest but rather is "secondary effects" (except "secondary effects" only applies to zoning (not bans) of sexually explicit speech) White Dissent: This is the correct view & should use SS cause the law/interest was related to expression & so can't use Obrien City of Erie v. Pap's A.M Basically secondary effect has not been extended beyond "zoning" to "banning" of sexually explicit speech, but still need be directed at public nudity (cant have immorality be the interest)
Section 2. Government's Power to Limit Speech in its Capacity as Landlord, Educator, Employer & Patron Speech in Public forums & Other Gov. Property Public Forums concept very important in 1st Amend
Categories of All Gov. Property (1)Traditional (parks, streets, sidewalks)= RTPM or (Ban) (2)Designated (universities, municipal theater)= RTPM (3)Non-public Forums (FBI building) = Reasonable & Viewpoint Neutral For #1 Parks, Streets, Sidewalks, they are for the public to speak in, they are ours!
2 Approaches: Guaranteed Access Right (trad forum) Equal Access Right (design. & non-public)(sort of)
Standardless licensing & too much discrimination SAIA v. NY Loud Speakers- required permit from Police Chief before using them There were no standards for how/when to give permit and the loud speaker was important & effective means of communicating ideas Here there was too much discretion & too great a risk of suppressing ideal Because was a park was a traditional forum and so must use RTPM instead of a total ban
Cox v. NH
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