First Amendment Short Outline

Introduction

I. IntroA. Main Struggle of First Amendment Law

1. Fundamental human ability (communication) vs. fundamental human structure we create (law)

a. Look to why we have laws & why communication is importantB. What courts weigh in 1st Am. Cases

1. Competing Interestsa. Public safety, silencing speech, reputations, national security, offense, value of

speech2. Value of Speech

a. Generally to listeners/society as a wholeb. Political/public policy oimportance

3. Contexta. What happened and where?

Theories of Free Speech

II. Theories of Free SpeechA. Societal Focus Freedom of expression is important of the community

1. Marketplace of Ideas (John Stuart Mills)a. Commonly held view may be false & censored idea trueb. The more ideas the better – take precaution against our own fallibilityc. Every truth needs to be tested or it becomes dogmad. Likely some truth and some falsity in all opinions

i. If we’re allowed to test our ideas, we’ll improve2. Criticisms of Marketplace of Ideas

a. Marketplace can be distortedb. There are other values beyond truthc. “Truth” may not be objective

3. Self-Governance Theory (Alexander Miecheljohn)a. Political decision-making is vitally important

i. 1st Am. like a town-hall meeting – protect political speechb. Goal is protection of all ideas, not all speakersc. Think about the group – has the audience heard everything it needs to hear?

4. Criticisms of Self-Governance Theorya. Undervalues the value to the individualb. How to you measure what ideas are different? What is political?

5. Communitarian Model (Cass Sunstein)a. “We the people” are the vital words

i. Putting the power of government in the people & need to allow the people to make good self-governing decisions

b. Speech is political when intended & received as a contribution to public deliberation about an issue

c. Government should facilitate & promote free speech6. Criticisms of Communitarian Model

a. Defining “public deliberation” is difficultb. Doesn’t protect commercial speech

7. Criticisms of all societal theoriesa. What about the speaker?

B. Individual Focus Expression is important of the individual1. Individual Fulfillment Model (C. Edwin Baker)

a. 1st Am. protects an area of individual libertyb. Purposes: individual fulfillment/self-definition and individual participation in

social changec. Artistic and creative expression involves purposes; subject-matter shouldn’t

matter – you change the social world2. Criticisms of Individual Fulfillment Model

a. What about the listener?b. Wouldn’t protect commercial speech

3. Individual Self-Realization Model (Martin Redish)a. Self realization is the primary modeb. Two sub-values: intrinsic (individuals control their own destinies) and

instrumental (individuals develop their own faculties)c. To control our destinies and as a value of democracy, we need free speech

4. Criticisms of Individual Self-Realizationa. Lots of factors help us control our own destinies beyond speechb. Speech may not be uniquely human – elevating speech to an undeserved level

5. Dissent Modela. We should embrace the dissident and romantic who stands along and says

“That’s wrong!” – it’s what the 1st Am. is all about

Incitement to Criminal Action

III. Incitement to Criminal ActionA. Schenk v. U.S. (Holmes) (1919) (leaflets to draftees)

1. “Clear and present danger” – applies bad tendency test (all about the context)a. What disturbance to public order might result from these words?b. Does it have the tendency to bring about something bad?

B. Masses Publishing v. Patten (Hand) (S.D.N.Y. 1917) (radical magazine)1. Test for incitement:

a. Speech must actually counsel/directly advocate some actb. Express or direct advocacy of law violation

C. Abrams v. U.S. (7-2) (1919) (Russian leaflets)1. Majority: bad tendency test2. Holmes/Brandeis Dissent: Requirements for clear and present danger (more rigorous,

requires nexus between words and action):a. Clear and imminent b. Present danger of immediate evil

D. Brandenburg v. Ohio (1969) (per curium) (KKK) STILL GOOD LAW1. Speech is protected UNLESS it is:

a. Directed to inciting or producing

b. Imminent, lawless action ; ANDc. Likely to incite or produce such action.

2. Components: lawless, imminent, likely

Words That Wound

IV. Fighting WordsA. Chaplinsky v. New Hampshire (1942) (9-0) (yelling at cops)

1. 2 Types of Speech: worthwhile & worthlessa. Worthless: obscene, lewd, profane, slander, fighting words

i. Can be regulated freely2. Look to whether speech is worthwhile/a step towards truth

B. Cohen v. California (1971) (Harlan) (“fuck the draft”)1. Can’t regulate a word just because it’s offensive

a. Which words can be regulated?b. Emotion means it has constitutional worthc. The suppression of certain words inevitably suppresses certain ideasd. Listeners have a responsibility, too (avert your eyes)

2. Protected speech – self-governance, marketplace of ideas, individual fulfillment3. First time SCOTUS talks about the interests of speakers, not just the audience

C. Gooding v. Wilson (1972) (threatening cops)1. 2-Prong Test for Fighting Words:

a. Words spoken in a face-to-face encounter; ANDb. Likely to cause an immediate breach of peace by the individual addressee

V. Hate Speech and IntimidationA. Theories of Hate Speech

1. Delgado – We need to protect even outrageous speecha. Free speech is equality

2. Lawrence – Racial epithets are a verbal slap in the facea. Cause a loss to the marketplace of ideas because they silence victims

3. Post – Problem is structural racism, not speecha. It’s about discrimination, not language. The discussion must continue

4. Haiman – Lawrence is wrong; silence isn’t automatica. We shouldn’t approve of any law that says people are automatically triggered by

languageB. R.A.V. v. St. Paul (1992) (Scalia) (cross burning)

1. Can prohibit ALL fighting words, but not fighting words on just specific topics2. Test for Content Discrimination :

a. Is the statute content-based?b. If yes, 2 prongs

i. Does the state have a compelling interest in regulating this?a. i.e., words most likely to cause a fight

ii. Was the ordinance narrowly tailored?a. Did it do exactly what it was supposed to do?b. Was there another way to accomplish the same thing?

C. Wisconsin v. Mitchell (1993) (9-0) (Rehnquist) (beating up white kid)1. Penalty enhancers for racially motivated crimes constitutional

a. 1st Am. doesn’t protect violenceb. This is punishing conduct, not speech

D. Virginia v. Black (2003) (O’Connor) (cross burning)1. Intimidation/true threats are not protected2. Intimidation: directs a threat with the intend of placing a victim in fear of bodily harm or

death (worst kind of true threat)a. Unclear whether you look at the facts of the case or an objective test of what a

reasonable person would think

Defamation

VI. DefamationA. New York Times Co. v. Sullivan (1964) (Brennan) (libel of public figures)

1. Standard for Libel a. Statement was false, defamatory, and made with actual malice

i. Malice = knowledge that it was false, or with reckless disregard for its truth or falsity

b. In order for a public official to recover, must prove all of those thingsi. Burden is on the Π ii. An honest mistake is okay, a reckless mistake is not

B. Gertz v. Robert Welsch, Inc. (1974) (Powell) (said he was a commie)1. If you are deemed to be a private Π, in order to recover any money against a media Δ,

you have to at least show negligence (not actual malice)a. Easier for private citizens to collect initial damages (the first $1)b. To protect private reputations

2. But if you want punitive damages, you have to show ctual malice even if you are a private Π

a. To protect 1st Am. interest (of media Δ)C. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) (credit reports)

1. Where a private Π sues on a matter of public concern, to get presumed/punitive damages, must show actual malice

2. HOWEVER, this is a matter of purely private concerna. Where a private Π sues on a matter of private concern, just have to prove

negligence for punitive damages

Invasion of Privacy

VII. PrivacyA. Florida Star v. B.J.F. (1989) (Marshall)

1. Publication cannot be punished under 1st Am. if:a. Information was lawfully obtained and truthful;b. The information is a matter of public interest; ANDc. The state interest sought to be protected is NOT of the highest order

B. Public Significance1. What is public significance? (can look at a bajillion factors)2. About the listener’s rights, not the speaker

Prior Restraint and National Security

VIII. Prior Restraint and National SecurityA. Theory of Prior Restraint

1. Blasi – Why we disfavor prior restrainta. Adjudication too abstract at an early stage; would be overusedb. Implies a distrust of audiences & an inability to hear messages and respond in a

mature fashioc. Forces the speaker to communicate on the state’s terms and not his own

2. Redish – Disagrees with Blasia. Full and fair adjudication and irreparably harm are required for judicial

proceedings (might even make it harder for government to prove)b. We should disfavor prior restraint more in licensing – no judicial review

3. Everyone hates prior restraint because it’s not freedom of speech at allB. Near v. Minnesota (1931) (Hughes) (5-4)

1. No prior restraint of the press – other remedies like libel laws2. Dicta: prior restraint would be permissible in certain situations (i.e., involving national

security)C. New York Times Co. v. U.S. [The Pentagon Papers Case] (per curium) (6-3)

1. Holding: “Heavy presumption” against constitutional validity of prior restraint2. Stewart Concurrence:

a. To get prior restraint, evidence must show that the publication “will surely result in direct, immediate and irreparable harm to our nation or its people”

Content-Neutrality, Symbolic Conduct and the Law of Time, Place and Manner

IX. Time, Place and MannerA. Hague v. CIO (1939)

1. Requiring a permit to speak in public places unconstitutional2. Parks and streets have been held in the public trust, “time out of mind”

a. You need a good reason to regulate with a nexus to the regulationB. Chicago Police Dept. v. Mosley (1972) (Marshall)

1. Regulation on the basis of content is highly disfavored2. The ordinance itself describes impermissible not in terms of time, place and manner, but

in terms of subject mattera. 1st Am. means that government has no power to restrict expression because of

its message, ideas, subject matter or contentC. Grayned v. Rockford (1972)

1. Things to check in statutes/ordinances :a. Viewpoint & content-neutrality b. Narrowly tailored to achieve a significant governmental interest

i. Has to make rational sensec. What are they trying to accomplish and where?

i. Look at the nature of the spaceD. Perry Education Ass’n v. Perry Local Educators Ass’n (1983) (White) (mailboxes in school)

THE CURRENT TEST1. 3-Part Test

a. Part 1: What is the public space? Traditional public form, designated public forum or nonpublic forum?

i. Traditional Public Forums a. Streets, parks, etc. have traditionally been devoted to public

debate “time out of mind”ii. Designated Public Forums

a. “Limited” public forumb. Places not automatically open for public use, but state has opened

for public activity (i.e., meeting room in a school)c. Once opened, must be open on an equal basis

iii. Nonpublic Forums a. Government-owned, but not a traditional or designated public

forumb. Part 2 & 3

i. If a traditional or designated public forum:a. If content-neutral , government must show:

1. Serves a significant governmental interest;2. Narrowly tailored to achieve that interest; and3. Leaves ample alternative channels of communication.

b. If content-based, government must show1. Regulation serves a compelling governmental interest; and2. Narrowly tailored to achieve that interest

ii. If a nonpublic forum:a. Government must only show that regulation:

1. Is NOT viewpoint-based; and2. Is reasonable

b. Just have to show that they didn’t take sides1. Can say “no protests about war,” but not “no protests

against war”E. Int’l Society for Krishna Consciousness v. Lee (1992) (Rehnquist)

1. Uses Perry Test – airport is not a traditional public foruma. Invalidate leaflet banb. Uphold solicitation ban

F. Frisby v. Schultz (1988) (6-3) (picketing abortion doctor’s house)1. Statute is not content-based despite being passed specifically for this doctor’s house –

look at the statute on its faceG. Hill v. Colorado (1999) (Stevens)

1. Doesn’t restrict a particular viewpoint or subject matter – content-neutral2. Content-neutrality is based on subject matter & face of the statute3. Narrow tailoring

a. Tight fit between means and ends; bright-line rule is bestH. Snyder v. Phelps (2011)

1. No tort action for intentional infliction of emotional distress or invasion of privacy where the speech is of public concern and the speaker is not in close, aggressive proximity of targeted Π

2. Balance the value of speech (public concern) with interests of privacy (if not public concern, more privacy)

I. Theory of Time, Place and Manner Restrictions (Bevier)1. Worried about the government distorting public debate and picking winners and losers

2. It’s the job of the court to promote public debate and open more places up to publicly promote debate

Symbolic Speech and the Speech of Protest

X. Symbolic Speech & the Speech of ProtestA. U.S. v. O’Brien (1968) (Warren) (burning draft card)

1. Test for Expressive Conduct a. A government regulation is constitutional, even if it affects expressive conduct,

if:i. It is within the constitutional power of the government;ii. It furthers an important or substantial government interest;iii. The interest is unrelated to freedom of expression; ANDiv. The incidental restriction on 1st Am. freedoms is no greater than is

essential to the furtherance of that interest.B. Texas v. Johnson (1989) (Brennan) (5-4) (flag burning)

1. Statute was content-based, so use strict scrutinya. Regulating speech because it’s speech

2. Is there a compelling governmental interest?a. When it is, analysis goes past O’Brienb. Government doesn’t’ get to fix the meaning of symbols

i. More than content-based: also viewpoint-based3. Definition of expression/speech: designed to communicate a particularized message and

a great likelihood the message would be understoodC. Time, Place and Manner & Expressive Conduct Compared

1. Tests very similar & courts aren’t rigorous about saying why they’re applying which testa. Both talk about some kind of important governmental interest, content-

neutrality and narrow tailoring2. Both about government operating public spaces & performing governmental functions

without burdening too much speecha. Classic ad hoc balancing of speech vs. interestb. Take statute on its own, look to whether governmental interests are strong

enough to overcome importance of speech3. To assess TPM and expressive conduct, courts are suspicious of laws directed squarely

at the communicative impact of somethinga. And most suspicious of laws prohibiting discussion of viewpoints and subjects

Tests for Classification of Speech Regulation

XI. Classification of Speech RegulationA. Track I: The government regulation directly aims at communication of ideas and information

1. Categories (concerned with these because they’re things we don’t like)a. Incitementb. Fighting wordsc. Defamationd. Obscenitye. Threats

2. Topics/Subject Mattera. Race

b. Religionc. Politicsd. War

3. Viewpointsa. “I hate America”b. No speech against the war

4. How think about everything on this track:a. Usually a very high burden for the government to meetb. Almost always strict scrutiny

i. Compelling interest ; andii. Narrow tailoring

B. Track II: The government regulation aims at a general end and only indirectly burdens communication

1. Content-neutral time, place and manner regulationa. Reasons: no littering, no traffic obstruction, etc.

i. Not directly aimed at speech, aimed at a different endii. Just happens to burden speech

b. Expressive conduct regulations that only incidentally burden expressioni. i.e., no draft card destruction

2. Easier burden for the government to meet (Perry test)

Protection of Commercial Speech

XII. Protection of Commercial SpeechA. Virginia State Board of Pharmacy (1976) (Blackmun) (drug prices)

1. Money alone doesn’t mean no protection for speech2. 2 interests to protect in communicative speech: individual (people need the

information) & societal (good information for good economic decisions)3. Commercial speech gets some protection

B. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n (1980) (Powell)1. In order to be a constitutionally appropriate regulation of commercial speech:

a. The message content must be concerned with lawful activity and not deceptive;b. The governmental interest must be substantial;c. The regulation must directly advance the interest; ANDd. The regulation must not be more expansive than is necessary to achieve the

interest.2. If speech is concerned with unlawful activity or deceptive, no protection.

C. Lorillard Tobacco v. Reilly (2001) (O’Connor) 1. Tobacco ad regulations not narrowly tailored

The Difference Between Commercial Speech & Political Speech

XIII. Commercial Speech vs. Political SpeechA. Buckley v. Valeo (1976) (per curium) (campaign finance)

1. Standard of Reviewa. This was regulating expression

i. When you’re donating money to a political campaign, you are politically expressing yourself

ii. So money can be speechb. Must give it “exacting scrutiny” because related to expression

2. Holding: Contribution limit upheld, expenditure limitations struck downB. Citizens United v. Federal Elections Commission (2010) (Kennedy)

1. Buckley said campaign expenditure restrictions were invalid, and this is a campaign expenditure restriction, so it’s invalid

2. The marketplace of ideas functions best when the government lets it operate3. Corporate speech is not necessarily commercial

Obscenity and Pornography

XIV. ObscenityA. Roth v. U.S. (1957) (6-3)

1. Obscenity is unprotected speech2. Speech is obscene when :

a. To the average person,b. Applying contemporary community standards,c. The dominant theme of the material taken as a wholed. Appeals to the prurient interest

B. Stanley v. Georgia (1969) (9-0) (porn in your house)1. Privacy is important; can’t give the government the power to control men’s minds

C. Miller v. California (1973) (Burger)1. New Test for Obscenity:

a. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, applies to the prurient interest

b. Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by state law

c. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

2. Brennan & Douglas Dissents: Everything is too vague and unpredictable

XV. Child PornographyA. New York v. Ferber (p.144) (1982) (White)

1. Child pornography gets no constitutional protection2. Different because of harm to children

a. Record lasts for ever; abuse of childrenb. Possession creates a chain of production

3. No protection even if doesn’t meet the definition of obscenityB. Ashcroft v. Free Speech Coalition (2002) (Kennedy)

1. Because law is restricting digital pornography and actors who are over 18, have to show compelling interest

a. Not the real thing and not connected enough to create an appetite for child pornography

2. Government may not suppress lawful speech as the means to suppress unlawful speech

XVI. PornographyA. Renton v. Playtime Theatres (p.212) (1986) (Rehnquist)

1. Treats ordinance as content-neutral even though it’s clearly content-based

a. Because “not content-based,” no strict scrutiny2. Test

a. Substantial government interest (concern over secondary effects of crime, prostitution, etc.); and

b. Left available reasonable alternative avenues/channels of communicationB. Geles v. Alameda Books (1986) (O’Connor)

1. Majority: content-neutral2. Kennedy Concurrence: Of course it’s content-based, just call it that3. Souter Dissent: Not just content-based, also viewpoint-based

a. Statements about being sexually explicit, active and adventurousb. If you burden these establishments more, you’re making a statement about the

types of movies they’re showing

Broadcasting, Indecency, the Airwaves and Beyond

XVII. BroadcastingA. Red Lion Broadcasting Co v. FCC (1969)

1. Broadcasting is different – scarcity of the broadcast spectrum2. Broadcasters are public fiduciaries

a. The most important 1st Am. actor is the audienceb. Audience deserves a marketplace of ideas

B. FCC v. Pacifica (1978) (Stevens) (Carlin monologue)1. Holding

a. Doesn’t meet the standard for obscenity, but it’s indecenti. Not unprotected, but also not a step towards truth in the marketplace of

ideasb. Speech on broadcast tv and radio can be regulated

i. Pervasive & intrusive mediumii. Uniquely accessible to children

c. Listener-centric, not speaker-centric (rights of audience > rights of speaker/broadcaster)

d. Narrow holding: time of day, broadcast, repetitive, light penalty2. Brennan Dissent: One man’s vulgarity is another man’s lyric

C. Post-Pacifica1. What is indecent speech ?

a. Language or material that depicts or describes, in terms patently offensive, as measured by contemporary community standards for the broadcast medium, sexual or excretory actions or organs

D. In re Complaints Against Golden Globe Awards (2004)1. FCC says: Use of words like “fuck” is inherently sexual and patently offensive

a. When children are around, ti is always patently offensive to use the f-wordb. Fleeting expletive rule

i. All that matters is that he said it, even if in a fleeting matter2. Holding

a. FCC rule is arbitrary & capricious – FCC needs some kind of rulemaking scheme; indicated 1st Am. problems

b. Case sent back down, 2d. Cir. said indecency standard is unconstitutionali. FCC didn’t petition cert

XVIII. Cable TelevisionA. U.S. v. Playboy Ent. Corp. (2000) (Kennedy)

1. Congress can’t require a safe harbor for cable – it’s different2. Strict scrutiny for cable regulations (compelling interest + narrow tailoring)

XIX. The InternetA. ACLU v. Reno (PDF) (1997) (Stevens)

1. Court immediately suspicious – content-based statute with criminal sanctionsa. Okay to prohibit obscenity, but also talks about indecent messages and patently

offensive communicationsb. No exception for literary or artistic value

B. Ashcroft v. ACLU (2004) (Kennedy)1. Congress tried to fix Child Online Protection Act, focused on indecent speech harmful to

minors & defined “indecent” more carefully2. Content-based, so use strict scrutiny

a. Compelling interest probably exists – protecting childrenb. Not narrowly tailored for strict scrutiny – needs to be least restrictive means

availablei. Filters would be less restrictive & burden less speech