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First Amendment Analysis
Terms in this set (77)
First Amendment Theory
1. Equality of status in the field of ideas and the government must afford all points of view an equal opportunity to be heard
2. Advancing knowledge and truth in the marketplace of ideas (suppression of opinion is wrong whether or not it is true)
3. Facilitating representative democracy and self-government (broad debate informs and improves making of public policy, prevents government abuse)
4. Promoting individual autonomy, self-expression and fulfillment (the final end of the state is to make men free to develop their faculties - liberty is both a means and an end)
Those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace
Fighting Words RULE
RULE: The use of offensive or provocative language will be punishable according to the "fighting words" doctrine only if:
The words are delivered in a manner and under circumstances likely to cause an immediate and serious harm (typically a violent reaction stemming from face-to-face confrontation)
Fighting Words Standard
Would people of common intelligence understand the words as likely to cause the average addressee to fight?
Fighting Words Considerations
Nature of delivery and comments (length of speech)
Context in which the presumably harmful or provocative words are used (very context-driven!)
In a sense, fighting words convictions regulate speech because fighting words are still "just words." Yet fighting words can also be incitement to unthinking, immediate, violent action.
Are people powerless to avoid the conduct that they did in fact object to? (Captive audience)
Is the statute limited to words that have a direct tendency to cause actions of violence by the person to whom individually, the remark is addressed?
Rationale for Excluding Fighting Words from Protection
Their slight social value as a step to truth is clearly outweighed by society's interest in order and morality.
The immediate reaction sparked by fighting words means there is no time to debate, to trust the free marketplace of ideas.
Is the audience "held captive?" (Can they avert their eyes?)
Hostile Audience Doctrine
If an AUDIENCE menaces the speaker to the point where the physical safety of the speaker is at stake then the police, acting on a nondiscriminatory basis, might be justified in stopping the speech
Issue is on the effect on your audience, whether you intended it or not
The state cannot prosecute speakers for breach of the peace simply because speech was before a hostile audience
Cohen v. California
The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is dependent on a showing that substantial privacy interests are being invaded in an essentially intolerance manner.
"One man's vulgarity is another's lyric"
The offensive words were not a "direct personal insult" specifically directed at the hearer.
State was not exercising its police power to prevent a speaker from intentionally provoking a given group to a hostile reaction.
RULE: Brandenburg test - "imminent lawless action"
(1) Imminent lawless action
(2) Directed to inciting imminent lawless action (intent)
(3) Likely to incite imminent lawless action
Tendency/likelihood to cause
Gravity of the danger - Does the gravity of the evil, discounted by its improbability, justify such invasion of free speech as is necessary to avoid the danger? (Dennis v. US)
Government's opportunity to prevent the harms before it would likely occur
Any form of speech that advertises a product or service for profit or for business purpose; Proposes a commercial transaction
HARDIER than other speech because it is profit-driven and more objectively verifiable
Commercial Speech RULE
RULE: Four-Part Central Hudson Test
1. Speech concerns lawful activity and is not misleading
2. Asserted government interest substantial is substantial
If YES to the first two:
3. Regulation directly advances the asserted government interest
4. Regulation is no more extensive than necessary to serve that interest (Overbreadth)
Need REASONABLE FIT between governmental ends and the means chosen to accomplish those ends (need not be least restrictive means)
Rationale for Commercial Speech Partial Protection
Free flow of commercial information contributes to public policy-making by making the many private economic decisions that drive our free enterprise economy more intelligent and well-informed
Banning advertisements may not be justified by the alleged salutary results
Bans on truthful, non-misleading commercial messages rarely protect consumers from deception or overreaching, but often serve only to obscure an "underlying governmental policy" that could be implemented without regulating speech
1st Amendment directs us to be skeptical of regulations that seem to keep people in the dark for what the government deems to be their own good - Government wants to keep consumers ignorant in order to manipulate their choices in the market-place
How important is the public interest in the information (where to live, etc.)?
Child Pornography RULE
Conduct to be prohibited must be adequately defined by the applicable state law
• A trier of fact need not find that the material appeals to the prurient interest of the average person
• It is not required that the sexual conduct portrayed be done so in a patently offensive manner
• Material at issue need to be considered as a whole (Even just a small part of it has to portray a child in a sexual act is enough)
Communicative material that is sexually explicit but not legally obscene and falls within the meaning and protections of the 1st Amendment
PROTECTED - apply strict scrutiny
Rationale for Child Pornography Regulations
(1) Compelling state interests in protecting the physical and psychological well being of minors
(2) Prohibiting the distribution of films and photos depicting such activities are closely related to this compelling government interest in 2 ways:
• The permanent record of the child's activity and its circulation exacerbates the harm to the minor
• Distribution encourages the sexual exploitation of the children and the production of the material
(3) Advertising and selling the material encourages the evil by supplying an economic motive for the production of such visual depictions of the children.
(4) The value of allowing live performances and photographic reproduction of children engaged in lewd sexual conduct is de minimis. After all, the person who put together the material depicting the sexual performance could always use a model over the statutory age who looked younger.
(5) The classification of child porn as outside of 1st Amendment protection is consistent with earlier precedent and justified by the need to protect the welfare of the children.
RULE: Miller v. California
If the speech fits this definition, it may be regulated without further recourse constitutional analysis.
1. Would the average person, applying contemporary community standards, find that the work as a whole appeals to the prurient interest?
• Satisfied if a reasonable juror could conclude the material induces inappropriate sexual longing—obviously a SUBJECTIVE and elastic standard
2. Does the work depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable state law?
3. Does the work, taken as a whole, lack serious literary, artistic, political or scientific value?
• Measured by a national reasonable person standard for which expert testimony is permissible but not required
• Often trumps the local community's perceptions of prurient interest and patent offensiveness (EX: pop music critics and a political science professor endorsed artistic and political value of the recording)
The focus is on the quality of the speech and not its intent, effect, or dangerous tendency. The harm is assumed to be implicit in the nature of the speech itself.
Tone of commerce in the town
Total community environment
Quality of life
Possibly public safety (at least an arguable connection between obscene material and crime; argument that is a sex aid, not speech)
Significant danger of offending unwilling recipients
Risk the material may be exposed to juveniles
Rationale for Obscenity Regulation
Implicit in 1st Amendment history is the rejection of obscenity as utterly without redeeming social importance
Sexually explicit speech is said to contribute little or nothing to the exposition of ideas
Some argue sexually explicit speech conveys no ideas whatsoever, but merely operates as a sensual stimulus designed to generate an animalistic response
However, critics noted the obvious cultural bias in these assertions and suggest that the sexual content of speech should not diminish the protections of the 1st Amendment
Obscenity Regulation Dissent
Argument that obscenity statutes are unconstitutional:
• They punish incitation to impure sexual THOUGHTS, not shown to be related to any overt antisocial conduct
• Person may be convicted without proof the material would ACTUALLY create a clear and present danger of antisocial conduct or induce recipients to such conduct
First Amendment's Basic Guarantee
TO ADVOCATE IDEAS
This guarantee is not confined to ideas that are conventional or shared by majority
Public Officials and Public Figures Libel RULE
RULE: New York Times v. Sullivan
Public official bringing a defamation action for criticism of his official conduct must prove that D published the defamatory falsehood with actual malice, through either:
• Actual knowledge of its falsity; or
• Reckless disregard as to its truth or falsity (proof that D "entertained serious doubts as to the truth of the publication" or the publication was made with a "high awareness of probable falsity")
Alleged defamation cannot merely be a statement of opinion UNLESS, the opinion implies the existence of certain false and defamatory facts, where it would then be treated as a factual assertion
Actual Malice Standard
)Actual Malice (actual knowledge or reckless disregard) must be established with CLEAR AND CONVINCING evidence
Truth is NOT A DEFENSE in the actual malice standard (lack of truth is merely an element in P's cause of action requiring merely preponderance of evidence)
Standard only applies to cases in which P is either public official or public figure
Any person employed by the government who holds a position that permits him or her to exercise DISCRETION over the conduct of governmental affairs or whose position is such that the PUBLIC would have "an INDEPENDENT INTEREST interest in the qualifications and performance of the person who holds it"
Persons who are intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large
Derives largely from a personal choice to become involved in public affairs
Private Figures Public Matters Libel RULE
RULE - Gertz v. Robert Welch, Inc.
In defamation suits brought by private plaintiffs, liability for ACTUAL damages could be established, if P proves that D had, with negligence, published a false statement of fact regarding P.
Actual Injury - not limited to "out of pocket" loss; most customary types include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering
Rationale for Libel Regulations
State expression is more important than vindicating reputation
Importance of PUBLIC DEBATE in society - If the debate is to be uninhibited, robust and wide-open, the participants must be free to risk the publication of factual error in their exploration for truth or consensus and in their quest for democratic accountability.
Departure from standards of investigation adhered to by responsible publishers
Does the substance of the falsehood make danger to reputation apparent?
Balance competing concerns - state interest in compensating individuals for injury to their reputation vs. 1st Amendment right to free speech
1st Amendment interests are less controlling in PRIVATE matters
Truth is not a defense because it may lead to comparable form of self-censorship if a critic of official conduct is compelled to guarantee the truth of all of his factual assertions
Damages for Libel of Private Figure in a Public Matter
So long as a state does not impose liability without fault, states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual.
State may not normally permit recovery of presumed or punitive damages unless:
• Actual malice is shown (knowledge or reckless disregard); and
• Defamation at issue involves a matter of public concern
Proof of actual damages is often hard to establish in this case and yet P's reputation has actually been tarnished -- thus, a jury should be allowed to presume damages
How to determine what constitutes a matter of public concern
Content, form and context
Whose interests are at stake?
How many people is the information available to? (Few people may obtain credit report)
Criticism/Dissent of Public Concern Doctrine
Courts are not equipped for such an ill=defined task inevitably involving ad hoc balancing
Judges are unable to determine what is public concern without examining the contents of the speech and then applying their subjective standards
Time, Place and Manner Restriction - Standard
TPM regulations must be:
Narrowly tailored to protecting important interests
Leave open adequate alternative channels of communication
Hate Speech RULE
RULE: RAV v. City of St. Paul
A law that regulates some speech in a category of unprotected speech on the basis of the content of the speech (symbols that arouse anger on the basis of race, color, gender, etc.) is PRESUMPTIVELY INVALID
Exceptions to Hate Speech Rule:
Content-based discrimination distinctions may be drawn if:
Drawn in order to proscribe the worst of the category (you cannot threaten the President—the worst of the category) because threats are more than just speech (they pose a danger than can be regulated)
EX: Regulating price advertising in one industry and not in others because the risk of fraud is greater there
The regulated subclass is associated with SECONDARY EFFECTS (You do not ban sexual harassment because you dislike the speech parts of it, but because you think there secondary effects - i.e., impaired functioning of the workplace)
There is no realistic possibility that official suppression of ideas is afoot
Rationale for Hate Speech Regulation
Concern with government regulation of what people want to talk about
Designated groups may be victims of deeply ingrained patterns of prejudice, patterns that are only exacerbated by the permissive attitude toward verbal abuse
Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or a group of persons with the intent of placing the victim in fear of bodily harm or death
State must prove INTENT to intimidate
May be seen as a variation of the fighting words theme that does not require confrontation (burning a cross on someone's lawn as a means of intimidation may be a true threat even if they are not home
Licensing Requirements of Allegedly Obscene Films
Before a local censorship board can deny a motion picture distributor's application to distribute a movie, it must:
(1) Give the accused party a prompt hearing
(2) Bear the burden of showing that the material is, in fact, obscene
(3) Either refrain from making a finding of obscenity or, as a requirement of law under the board's enabling statute, take action on its own behalf in a court of law to seek affirmation of its initial finding of obscenity
Restrictions where the government has undertaken selectively to shield the public from some kinds of speech on the ground that they are more offensive than others have only been upheld where:
The speaker intrudes on the privacy of the home
Degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure
Nudity Regulation Considerations
Can individual readily avert his eyes?
Context and pervasiveness of the nudity (baby's buttocks)
Evidence of other purposes, i.e., traffic regulation, should be apparent on the record and supported by statistics, etc.
Nature of how the material is presented (drive in theatres versus words on a person's jacket)
Limited privacy interests if in public
Zoning Law Considerations
Appropriately defined ordinances may be a valid exercise of a state's zoning powers to avoid concentrations of physical and economic effects in a neighborhood
Does a particular activity create special problems not associated with other commercial uses?
Availability of reasonable alternative avenues of communication
Does the ordinance restrict the viewing in any way of those who desire to see something?
Zoning Law Rationale
Concern with "SECONDARY EFFECTS" of adult theaters - to prevent crime, protect the city's retail trade, maintain property values, and preserve the quality of life
What is at stake? If only the location where a particular activity may be conducted is at stake, the city's interest may adequately support its classification
Innovative land-use regulation (incidental 1st Amendment implications)
Nude Dancing Regulation Rationale
Non-obscene nude dancing has some free speech protection
There is also a substantial government interest in protecting societal order and morality
Nude dancing may be analyzed under standards for symbolic speech, conduct, zoning laws
Key issue is whether non-verbal is to be treated as if it were speech
No particular standard for determining whether non-verbal activity should be considered speech
Mere INTENT of the speaker cannot be determinative as to whether the non-verbal activity should be considered speech
Regulation of Conduct with Incidental Effect on Expression RULE
RULE: O'Brien Test
The government can restrict non-verbal speech if the government's action is:
(1) Within constitutional power of government
(2) Related to an important or substantial government interest
(3) Unrelated to the suppression of expression
(4) No greater than essential to further that interest
"Son of Sam" statute requiring income of convicted persons to go to the families of their victims
The law was invalid because it was the functional equivalent of an economic tax. It imposed a financial disincentive to create or publish works with particular content.
2 Types of Content-Neutral Laws
(1) Aimed at CONDUCT, which may have an incidental effect of suppressive speech when applied a "symbolic expressive" version of that conduct
(2) Aimed at EXPRESSION, for reasons unrelated to its content - TPM regulations for speech in public forums
Traditionally open to public discourse, and therefore cannot be closed (public sidewalks and public parks)
Content-neutral, apply reasonable TPM standards
Content-based, apply strict scrutiny
There must be objective criteria to curtail possibility of discrimination against unfavored content
Concerns with Regulation of Public Forums - Discrimination
Government is obligated to provide equal access if any access is permitted. The danger is that the government will choose among speakers in a biased way.
If city allows uncontrolled discretion, it sanctions a device for suppression of free communication of ideas.
Concerns with Regulation of Public Forums - Distribution
Public places are important to the distribution of speech. Access to the public forum acts as a compelled subsidy for speech that otherwise might not be heard.
Risks of Injunctions
While a statute is generally applicable and represents a choice made by the legislative process, an injunction has a GREATER RISK of censorship and discriminatory application because one judge imposes it on certain individuals, without any legislative debate.
Test for Injunctions
Does it burden no more speech than is necessary to accomplish its objective?
It must be narrowly drawn, couched in the narrowest terms necessary to accomplish its pin-pointed objectives
Test for Licensing Schemes
RULE: A permit or license regulation may not grant the administrator an amount of discretion that might be used to allocate permits based on content.
The administrator's decision cannot be based on content (fee cannot be based on content of parade)
Designated Public Forum
Not traditionally open to public discourse but a governmental entity has chosen to open this channel or property to public discourse for a time (opening classrooms to the public when school is not in session)
Content-neutral, apply reasonable TPM standards (intermediate)
Content-based, apply strict scrutiny
There must be objective criteria
Non-Public Limited Forum
Not traditionally open to public discourse and the government has chosen not to throw open to public discourse (public school classroom when class is in session, courtroom)
Content-neutral, apply reasonable TPM standards (intermediate)
Content-based, apply strict scrutiny
State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation is REASONABLE (in light of the uses and purpose of the forum) and VIEWPOINT-NEUTRAL (not designed to punish or suppress speech with which the government disagrees)
Public Employee Speech RULE
RULE: A public employee's speech is protected when it relates to any political, social or other MATTERS OF PUBLIC CONCERN, therefore strict scrutiny shall apply
Otherwise, government officials enjoy wide latitude in managing their offices without intrusive judicial oversight, especially when speech has a detrimental effect upon their employment environment
Public Employee Speech Balancing
Government actions must be narrowly drawn to serve objectives that outweigh the interest of the individual in commenting on issues of public concern
Public Employee Speech Regulation Rationale
Although there is no constitutional "right" to public employment or to contract, some constitutional restrictions apply when government attempts to discharge employees for exercising their constitutionally protected liberties
Public employees cannot be compelled to relinquish their individual rights to comment on matters of public interest
Public Employee Speech Regulation Considerations
Whether speech addresses a matter of public concern is determined by the content, form and context, as revealed by the record
Whether the regulation will discourage employees from making critical statements about their employer for fear that doing so will provoke their dismissal
The Court has not restricted government speech, unless the governmental action violates the Establishment Clause
The Court has used the free speech clause to restrict government regulation of private speech but not speech by the government
Public forum analysis does not apply to displays of a permanent monument, even though a public park is a traditional public forum for speeches. Speeches eventually end.
If the government were to use subsidies to private speakers in order to suppress some anti-government messages, the governmental attempt to foreclose opposing views may be seen as a violation of the 1st Amendment
Interests - providing a balanced presentation of issues to the public
Government Required Speech
The government may not enter the political marketplace by forcing private persons to subscribe to or advance messages favorable to the government.
Such action is inconsistent with the fundamental FREEDOM OF BELIEF.
EX: Cannot compel students to pledge allegiance to the country, states cannot punish persons for making "live free or die" motto on his license plate illegible
Rust v. Sullivan
The government does not discriminate on the basis of viewpoint if it merely chooses to fund one activity instead of another.
When the government appropriates public funds to establish a program, it is entitled to define the limits of that program
Overbreadth - Distinctive Features
(1) Results in the invalidation of a law "on its face" rather than "as applied" to a particular speaker - law becomes wholly unenforceable until rewritten on more narrowly construed
(2) Challengers are permitted to raise the rights of third parties
Gives impressions of judicial modesty and federalism
There must be a realistic danger that the statute itself will significantly compromise recognized 1st Amendment protections of parties not before the court for it to be facially challenged on overbreadth grounds.
Government cannot ban unprotected speech if a significant amount of protected speech is prohibited or chilled in the process
Vagueness - 2 Important Aspects
(1) Ensuring fair notice to D - protects liberty
(2) Protecting equality and separation of legislative and executive power through the prevention of selective enforcement
An individual may challenge a licensing scheme at issue on its face without their having applied for and been refused a license
Establishment Clause RULE
RULE: 3-Part Lemon Test
A law would violate the Establishment Clause UNLESS:
(1) It had a secular PURPOSE
(2) It had a primary EFFECT that either advanced nor inhibited religion
(3) It avoided creating an "excessive ENTANGLEMENT" between government and religion
FREEDOM OF RELIGION
Court uses the principle of neutrality in its guide under both Clauses
If the government were to give benefits to a group of persons defined by their religious beliefs, it would create a sect preference that violates the establishment clause.
If the government were to impose burdens on a group solely because of their religious beliefs, its action would violate the free exercise clause unless it was necessary to promote a compelling interest
Locke v. Davey
Court upheld a state law that denied scholarship aid to post-secondary school students pursuing a degree in "devotional theology"
State law was valid because it did not impose burdens on persons due to their religious beliefs, or disfavor them on the basis of their faith
"Excessive Entanglement" - Prong 3 of the Lemon Test
For prong 3, the court must consider the nature of the institution that received the benefit from the government, the nature of the aid given to the religiously affiliated institution, and the resulting relationship between the religious and government authorities
Unemployment Compensation RULE
Free Exercise Clause
Government Actions that Substantially Burdens Religious Practice
RULE: 2-Part Standard from Sherbert v. Verner
(1) P must show the law places a substantial burden on the exercise of her religion (cannot force people to choose between their religion and something else)
(2) Court will uphold this burden ONLY if necessary to further a compelling state interest that outweighs the degree of impairment of a right of free exercise
Standard for Laws that Fail Neutrality or General Applicability Standards
Strict Scrutiny - it is doubtful that any such law would be truly necessary to a compelling government interest
Exemptions for Religiously Motivated Actions
The free exercise clause does not require that an exemption be created form laws of general applicability to protect persons with religiously motivated actions.
However, the state often may grant the exemption without violating the establishment clause.
Legislative Accommodation of Religion
The Constitution does not require a religiously based exemption from laws of general applicability but the legislature CAN take steps to accommodate the views of persons whose religious beliefs would not allow them to comply with the law
Smith: Government will prevail over FE when:
(1) General criminal act (religiously-neutral) - generally applicable laws
(2) Neutral - rational basis review
Free Exercise Claims - 2 Requirements
(1) The religious belief allegedly burdened by the government is CENTRAL to one's religious beliefs
(2) The religious belief that is allegedly burdened is SINCERELY HELD - belief must be "good faith belief" (no inquiry into whether it is a "true" belief)
(1) No national religion - thus, requiring oaths of fidelity to a faith or tithes or other financial support for a church would be a violation
(2) One religious denomination cannot be officially preferred over another
Establishment Clause Examples
School prayer - violates neutrality
Leaving school for religious purposes - OK
Religious decorations - OK, so long as they are accompanied by secular and/or other religious symbols
Clergy members cannot speak at graduations
Free Exercise Clause - 2 Beliefs
Right to Believe
Right to Practice that Belief
(1) No law can inhibit the right to believe (Sherbert)
(2) Does statute have purposeful intent or incidental burden?
Purposeful intent - strict scrutiny; probably not upheld
Incidental burden - Balancing test (Smith exception - Gov't can prohibit some religious acts because they are prohibited by statute)
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