First Amendment

First Amendment

  1. Why is freedom of speech protected
  1. Serves a self-government functionbc ppl cannot participate in gov effectively, knowledgeable and meaningfully unless then can speak freely
  • Market place of ideas akin to the Free market in economic sense
  • Best ideas come to the surface and stay while the bad ones fall out and die
  1. Safety value function
  • Gives people a way to openly vent anger that is non-voilent
  • If they can’t vent anger open they might start building bombs or something
  1. Truth seeking-(market place of ideas)
  • Applies outside the political sphere into every area
  • g. the question of scientific truth, economic truth etc.
  1. Autonomy and self-fulfillmentfunction
  • The only one in which the ends and the means are the same
  1. The functions emphasized determines what sort of speech we are protecting
  1. Weird Margulies metaphors
  1. Verbal words that isn’t speech =Eskimo’s rubbing noses (how are you?)
  2. Is something clear or not to be protected speech= fuz buster (radar scanner)
  • Aka is there some sort of idea or message that you “disapprove of cops politcially” or nothing which isn’t protected

 

 Themes

  1. Overarching theme– Speech needs sometime behind it whether words or an action/expression
  • The idea or formation of an idea should be behind it
  • If nothing behind it not speech
  1. Maximizing the effectiveness of speech
  2. to what extent should private section wealth and power disparities matter
  3. What is speech?
  4. What are words?
  5. Can non-verbal expression be speech?
  6. Is verbal expression necessarily speech?

How clear must an idea be to get first amendment protection?

Things that aren’t speech

Is speech absolute or is there a balancing of interests to determine what is or isn’t speech?

Association with others and using money and/or power both enhance the effectiviness of speech

  1. Association while not expressly protected, is implicitly protected
  • Association can potentially act as a bullhorn as well, but not everyone has the same money and power.
  1. The money and/or power is different because there is reason to protect against it due to the possible drowning out of ideas (aka bull horn)

What is speech?

Something expressive that conveys and idea (definition)

  1. Therefore, expressive conduct can also be speech known as symbolic speech
  2. Speech is what the 1st amendment guarantees, but not expression
  • This is why some divide as to whether expression is speech

What do we look at them do decide the intended meaning of speech?

  1. History- why did framers think of speech as limited to verbal symbols?
  • They wanted to protect ability to communicate effectively on matters of public import
  1. How did you communicate back in the days of the founders?
  • Printing press with fliers or maybe a soap box in the local square.
  • That worked then, but that doesn’t necessarily work today because the audience is national aka words are not as effective
  1. We don’t own newspaper or television station
  2. Therefore, what do you do today to get their attention?
  • Shock them- like burning a flag
  • Thus in defining speech should would
  • Literate meaning
  • Try to ascertain the values they were trying to promote, or
  1. This is of course the static or evolving constitution

What are words?

Words no inherent meaning, words are symbols.

  1. Therefore, does the 1st protect only words or symbols too
  • Therefore in order for words to be speech it must contain information or convey an idea/information

Is verbal expression necessarily speech?

  1. Not always necessarily speech.
  • e.
  • Why not interrupted margulies
  • Bored, fascinated
  1. Either instant your responding the content
  • Polite, scared
  1. Mere fact that I’m speaking operates as a gag
  • Only one of those is responding to the content
  • Thus, if no content underlying it maybe not speech- hence eskimo noses (how are you)
  1. Therefore in order for words to be speech it must contain information or convey a formation of an idea
  • But remember sometimes the How are you/ eskimo nose kisses does invite an idea or formation of an idea and is therefore, protected.
  • The fuz buster(can convey somesort of an idea)
  1. Therefore, there isn’t a clear line between what is or isn’t speech when there are words and actions
  • Sort of goes into the clarity issue

How clear must an idea be to get first amendment protection? (theme)

  1. Fuz buster

Speech that isn’t speech maybe

  1. You can’t shout fire in a theater? (is this speech at all)
  • But there aren’t things that are different from shouting fire in a theatre, such as
  • Unsure if these things are protected, bc slightly different from shouting fire in a theatre
  • blasphamey
  • Or no hate speech
  • No sexist or racist speech
  • Pornography (could express ideas or maybe a form of art (which self-fulfillnt argubly protects)

Shouting fire in a theater- is the same as conduct of (pulling a fire alarm)  – it is just not speech and quite irrelevant– uses mechanisms of language must does not make speech

  1. But has no place in balshpamey, hate speech, racist, pornography

Does it matter if theater is crowded or not?  Bc the crowded part was not part of original test

  1. For holmes’ his thing was about circumstances and degree.
  • Therefore, what technic are they using?
  • Balancing test- assuming shouting fire is speech in the first place, bc

Incitement to Violence

  1. The Clear and Present Danger Test
  • Highlights the battle between absolute speech and balancing of interests

Views of Justices in early 1st amend cases

Holmes’ would say protected but balancing of interests

Black

  1. Speech protected absolutely, but would not extended any protect to expressive conduct or symbolic speech
  2. Verbal as opposed to nonverbal is likely to be more clear and less likely than nonverbal expression to threaten collateral harms nothing to do with the context of the expression
  • Black is balancing in “definitional balancing”
  1. Original Test of Clear and present danger

In inception wasn’t for all seasons

  1. Only for certain circumstances need to be in place for it to apply
  • g. War times
  • In Gitlow the court didn’t apply because the statute targeted specific context of speech
  1. Which was to overthrow of gov.
  • Leg had decided speech was harmful and therefore, must defer to legislature
  • In Shcenk it was the causing of particular types of harms
  1. Actual test in Abrhams, shecenk-
  1. The test was originally foreseeability because gov doesn’t have to show specific intent just has to show that it was probably and likely and doesn’t need proof that it is likely (and in certain circumstances) (aka war time)
  • The danger protected against is
  • Any danger that congress has a right to prevent (through congressional powers)
  1. Essentially this is a rationally test

Dennis

Applied clear and present danger test to statute functional like to Gitlow one,  but not clear what the test was.

  1. Now the test is for all seasons, so now specific circumstances
  • Don’t need to show that the danger is imminent, just that there was danger.
  • Of marg telling ppl to buy and train with guns legal then waiting years to strike on his command
  • Essentially found guilty of forming a group with a certain intention
  1. There is a question that dennis didn’t resolve
  • Who decides whether the requist clear and present danger exists (very important question)
  • 3 possibilities
  1. Legislature
  2. Jury
  3. Judge (law aka ultimate fact)
  • The judge decides de novo
  • But the problem is because they are political questions, but frankfuter would let the legislture decide
  • Black thinks the test doesn’t apply, but if it did they jury should decide,
  • Issue there is that the jury and leg is both majoritian
  1. Brandenburg’s clear and present danger test

The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

  1. Potentially may require an intent element when open advocacy
  1. Difference between facts and test in denise and bradenburg?
  1. Bradenburg is speaking to nation and openly, but in Dennis are speaking in clandistine speech
  • Potentially 2 tests
  • Open advocacy test(Bradenburg)
  • Clandestine advocacy test (Dennis)
  • Since circumstances will never be same in two cases, this is why clear and present danger is a balancing approach
  1. Essentail Inite to violence using lear and present danger  – ask marg is right
  1. Three different tests
  • Original like shecneck and abrhamas (foreseeability and only in certain times aka war time)
  • Dennis (cladnesity) (basically just show that there is a danger)
  • Bradenburg (open advoccay) (see above)

Non-speech categories

  1. Fighting Words
  • “Calling stupid son of a bitch”=punch
  • Little or no expressive values like gag, punch in the nose, or smoke bomb in theatre
  • Personal invective direct to someone present or likely to be present directed at a speaker
  • Exception
  1. For police officers → suggested that the fighting words doctrine should be abandoned as applied to police b/c police are trained to stay calm and not take offense
  2. People who are vulnerable emotionally+physically are not trained in this way
  3. Creates a balancing test similar to clear & present danger test
  4. Perhaps more for all instances regarding
  5. imminent danger, or
  6. Political message
  • Essentially fact specific analysis
  • Police exception opens the door to treating fighting words as speech

What are the underlying reasons for fighting words?

  • 2 rationales
  1. In chaplinsky- there are two reasons for fighting words
  2. Inflict injury (feelings), or
  3. Incite an immediate breach of peace
  1. Scalia in R.V.A says fighting words (basically the same as fighting words)
  2. To protect public morality,
  • Never been used to justify conviction
  1. Breach of the peace

Cohen v. California (“fuck the draft” jacket)

  • Marguiles says that this case can teach you everything about the first amendment
  • A.V can’t target fighting words based on whatever viewpoint they express.

Wisconsin v. Mitchell

  • Distinguished because in RAV only dealing with words, but in this case they are dealing with behavior,
  • but the whole point of fighting words is that they are the function analogy of conduct
  • Therefore, must ask a question are fighting words a category at all anymore

Hate Speech

  •  Currently, not regulated, even though many argue that it should be considered a non-speech category.
  • Problem with regulating because hard to define → danger of vagueness and overbreadth
  • Raises question of whether we have free will
  • Do threats cause behavior or do we have control over out behavior?
  • See Mitchell (conduct) vs.  RAV (words) distinction
  • We still see hate speech as conduct
  • See also Virginia v. Black

Why are American court’s outliners when it comes to hate speech?

  • Some Canadian judge offered an answer- Canadians trust gov. more and don’t care as much about speech
  • Why protect racists speak?
  • Because we don’t trust gov. to draw lines and we can so much more about not trusting government

Defamation

  •  Officially recognized hierarchies for speech
  1. Defamation against public figure
  • Anyone who throws themselves into forfront of public thing
  • They must prove that you acted with Actual Malice
  • Must awareness of an inference to falsity
  • Negligence is not enough
  1. Private Figure (matter of public concern)
  • Can recover actual damages for negligence; but it needs to satisfy malice of punitive damages
  1. Private Figure not involving matter of public concern
  • States can decide what to do but can’t be strict liability; malice is not need, but needs to be actual defamation

How to approach a question

Questions Court asks

  1. Is this speech?
  • If no speech, then no protection of 1st amendment, which is deminus protection of substantive due process in 14th amendment
  • This is speech, so now
  1.  Why is the gov. trying to restrict the expression
  2. Context concerns, or (applies strict scrutiny)
  3. Collateral to content –
  • Get even clear examples of R.V.A
  • Makes difference is flag burning because it wants to discourage burinign flag (content), or
  • Is it because don’t want burning things in public (conduct)

Obscenity

  • Obscenity is a “blowjob” and indistinguishable from sex

Miller Test

  • Speech must be taken as a whole and it must satisfy 2 things to fall into obscene
  • Must be to pruieteny interest as measured by local standards (measured by jury),
  • Must depict or describe specified functions, organs, or organs specified in the relevant statute and the depiction must be patently offence (i.e. measured by jury),
  • Material must lack serioussocial value (i.e. artistic, scientific, political value etc.)
  • The value is determined by a national standard- the decider is therefore the court
  • Thus ultimate is a question of law
  • This is like the Dennis case or about determining malice in the public figure cases because the court decides the law question like clear and present
  • “Serious” was added by the miller court and before that point the slight social value was enough to make it non-obscene speech
  • The old test was fact-specific balancing

Since Obscenity-is not speech it is conduct- therefore only needs a rational basis review

  • The court explicit says the government can punish obscenity by purely speculative harms
  • Possibility of triggering sexual violence
  • Encouraging sexual promicious behavior, or
  • Lowering the moral tone thereby lowering quality of life
  • Under rational basis
  • The government can general and can prove harms by just speculation
  • This also explains why gov can target obscenity under inclusively

Why is obscenity non-speech?

  1. Official Story
  • Obscenity does not appear to the intelligential or emotive facilities and induces a purely physiological effect,
  • Therefore it either “makes people hard or it makes them wet”
  • Thus not truth seeking, market place of ideas, safety value, or self-fulfillment function
  • No self-fulliment function because not intellectual emotionally or spiritual function
  1. Unofficial story
  • Mere fact that speech promotes violence does not render unprotected (i.e. brandenburg
  • By turning ppl on may promote or increase promiscuity which would lower the moral tone of public
  • In other words it can have effect on their actions on their minds (on their viewpoint)
  • Obscenity must aim at their viewpoints in order to have their effects
  • But they do this through graphic sexual imagery
  • In a sense this is symbolic speech-> by showing sexually explicit pictures, etc.
  • More likely to incite listeners like cohen’s jacket

Indecency

  • Can regulate secondary effects or use TPM
  • Total bans are not allowed

Child Pornography = child abuse

  • Laws that ban sexually explicit depictions of children are facially valid because it the fact majority of instances the tend to inflict terrible harms on children
  1. Gov has a compelling interest in preventing harm to children
  • These will past constitutional muster even though they ban things that may potentially have redeeming value because we have a non-speech category
  • Is there a difference between what they say and do?
  • Only effective way to ban it is by drying up the market
  • Why not just ban the conduct of banning the exploitation of children conduct?
  • They want to dry up the market, but banning the conduct and only the conduct is that this occur in private and so it is hard to find2
  • Thus the only way to stop it is to prohibit the dissemination
  • What case is are exception?
  • As applied challenges
  • (e.g.) Medical textbook, national geographic, of a very serious play perhaps
  • How?
  1. Argue that no exploitation because not causing harm to kid since for scientific value
  2. Thus the artistic choice could be like Cohen in deciding how to give forth stuff
  3. Has serious value
  4. Because has serious value the risk of psychological damage to child is vastly reduced
  • In have exceptions to a non speech category the court is treating this as a fact specific balancing which is not what is supposed to be happening in categories

Secondary Effects

Renton Case

  • Paradigm case for secondary effects
  • What are the secondary effects in renton?
  • The court allows the law that porn theaters can’t be near each other
  • Why?
  • The films by virtue of the content they display cause increase crime, lower property values, etc.
  • Thus it is a step or two removed form content concerns

Boose v. Barry

  • Invalidates an act of congress which made it illegal to have a hostile demonstration in front of any foreign embassy, unless they took place at a distance away from the agency
  • It worked as a dispersal function and relied heavily on the secondary effects, namely adverse impact on foreign policy, rational from renton
  • The Court says Renton is distinguishable?
  • The motive was not based on hostility to content but the concern was effect based on the content
  • Why so here?
  • The effect of the content on whom?
  • It was the effect of the content on the direct receipt- i.e. foreign embassy
  • In renton
  • It was the effects of the establishments on attractive outsiders to cause problems

Middle Level of Speech

  • Commercial speech has a lesser place, however, don’t forget that you cannot treat commercial speech differently from political speech based on this hierarchy only

Commercial SpeechRules

  • Once upon a time it was unprotected except for 14th amendment minimum rationality
  • Commercial speech is protected, but it is not fully protected and the entire category standards on a sort of hierarchy
  • In that commercial speech is in the middle between pure political speech and non-speech that is unprotected
  • Test is intermediate review ask these 4 questions
  1. Is the speech false or misleading, or does it advocate illegal activity, (if does not protected), if not then follow Central Hudson test
  2. That there is a substantial government interest (not compelling like strict scrutiny)
  • Things that have worked in past
  1. Privacy of the home (to max consumer choice)
  2. Scams (prevent the potential for fraud)
  3. That the government regulation directly advances that interest
  • Aka this is not under inclusive or undermined by so many exceptions to defeat it’s purpose
  1. That the regulation is not more extensive as necessary to regulate the interest
  • This is not the least restrictive alternative analysis (like strict scrutiny) so it gives more leeway in not having the strictest method
  • Test for regulating commercial speech (only) on basis of its content is intermediate scrutiny
  • Does it mater therefore whether the regulation of commercial speech is content based or content neutral because it is the same standard, but different wordings
  • Why then the different wordings?
  • However, the Supreme court has official recognized that they are basically the same thing.
  • So you will often see time place and manner cases being cited in commercial speech regulations and vice versa

What do we mean by commercial speech?

  • In the early days the supreme court had 2 definitions
  1. Commercial speech is speech that proposes a commercial transaction (virgin pharmacy) (Rule today)
  2. Speech that pertains solely to the economic interest of the speak and the audience
  • But what else- could be subject to this?
  • Debate over the debt ceiling (debatable), or
  • Debate about a labor workers dispute
  • Therefore, this definition might be too broad and this isn’t the rule
  • Why not protect commercial speech
  1. Commercial advertising is inseparable from the actual purchase and is no difference from economic activitythus it is conduct
  2. In some respects this operates subliminally
  • Thus once we start protected economic activity we are in a way protected Lochner
  • The issue with reviving Lochner is that we have found, unregulated marketplaces don’t work because the absence of regulation further empowers the powerful and further disempowered the weak (according to marguiles)
  • So this why ppl argue that many advertising today is large corps that go wild and we allow corp advertising to flood the market and in a sense bludggen consumers into follow advertising wishes
  1. The purposes of the first amendment?
  2. Remember the 4 things from early
  3. Truth seeking
  • There is no trade in idea
  1. Self-fulfillment
  • Does not extend to conduct or everything we want to do that makes us feel good
  • Only protects intelictual, emotional, or spiritual development
  1. Advertising was not something at all the founders wanted to protect
  • Why Protect commercial speech (at least in some way)
  1. Speech is usually assumed to appeal to the intellect and is promoting free will, and just because maybe obscenity got it wrong we shouldn’t carry it over to commercial speech
  • Aka core assumption is that ppl choose right
  • Couldn’t you say the same exact thing about subliminalness of poltical ads
  • Can we regulate political speech indirectly?
  • Limit expenditures
  • Therefore, can’t we limit the expenditures of commerical speech?
  • So far courts have said no to limits on campaign spenditures
  • There is plently opporuntity for counterspeech other than gov.
  • Commercial competitors
  • Corporate watchdogs
  1. People are often talking about commercial products other than sports and sex
  • Who’s first amendment is it
  1. Who cares what framers thought?  Because mass media wasn’t even around it wasn’t a phemona or problem around there so it is irrelevant what they though
  2. The lochner analogy isn’t true because listens not just the speakers have rights
  • Thus if you ban the right of ppl your not hurting the speakers only, but you are really hurting the poor people because now they don’t know where to shop and they won’t get the free legal services
  • Next week we will see a difference about content v. content neutral regulations
  • Even theortically nuetral regulation can have significant adverse impacts on disenent viewpoints
  • Just like restricting advertisng can have disparate impacts on the poor for economic services
  • It raises the question to what level should the first amendment take into account private economic disparities?

Content Based v. Content Neutral

  • Two important distinctions between what is aimed at and what is hit
  1. Hit

Does gov action hit speech or conduct.

  1. If conduct- no first amendment at all and no level heightened scrutiny unless other provision comes up.  So simple rationality review
  2. One exception in RAV
  • Because there the gov. action hit “fighting words” and theoretical fighitng words aren’t speech so speech was’t hit
  1. But what they do so maybe fighting words are speech
  2. If speech
  3. What is the gov. interest in regulation; asking Is it substance or content related?
  • If yes- strict scrutiny
  1. Unless speech falls into a less protected category
  2. Commercial speech
  3. No obscene but sexually explicit and vulgar speech
  4. They say treated no differently than vulagr speech, but what they do this might be a middle tear
  • If no- aka not aimed at message
  1. Intermediate standard of review
  2. Two ways in which laws can aim at non-speech impacts but hit speech and thereby intermediate standard

Two ways

  1. Time place and manner regulations (they are speech specific)
  1. They regulate when and where speech takes place
  • They regulate this out of concern for collateral effects
  1. g. limiting number demonstrators bc traffic and safefty concerns
  2. Limit size billboard for aestehcis
  1. Intermediate standard here is
  1. The regulation has to be content neutral
  2. Narrowly tailored to advance
  3. A significant, substantial or important gov interest
  4. Leaves open ample alternatives of content expression
  5. Address conduct  or  behavior that will also impact expression (expressive conduct)
  1. e.g. burning American flag, burning draft card, flashing headlights
  2. What is the test here?
  • Obrien test
  • Regulation must be within power gov.
  • Must further a substantial gov interest
  • The interest must be unrelated to content of message
  • Regulation must sweep no more broadly than necessary to advance that interest
  • Court has since said that these 2 different standards are really 2 ways of saying the same things
  • Thus court may apply obrein to time place and manner standard

Time, Place, and Manner Restrictions (TPM) aka content nuetral

  •  Intermediate standard here is
  1. The regulation has to be content neutral
  2. Narrowly tailored to advance
  3. A significant, substantial or important gov interest
  4. Leaves open ample alternatives of content expression

Subject matter ban about electioneering near polling places

  • The court says this is actually content based, but applying strict scrutiny it sustains ban in vidicating counterveiling rights, which is to vote free from coercion and fraud
  • Electioneering at polls on election day indicates both
  • Kennedy here concerns in judgment and instead of per se ban he says he will make an exception when there is a countervailing fundamental right.
  • In such cases he says you must balance them
  • And strict balance in favor of the state
  • Marg says these two things are really the same

Captive Audience Doctrine

  • Comes from the abortion clinic cases
  • The court carves out exception of the captive audience doctrine
  • This is the right to speak but cannot throw it on other ppl that can’t escape, in other cases people must ignore it
  • In past court says can’t throw on in private home, or in captive audience on ppl in bus
  • Captive audience doctrine has
  • The court allows a constraint exception only in front of abortion centers
  • Why?
  • These are unusually vulnerable ppl both emotional and physically
  • We have to make special allowances for vulnerable targeted audiences
  • Who can take this and run with it?

Forum Analysis

  • You ask what is the relevant forum

Rules

  1. Traditional public forums
  2. Venues consist of municipal streets, sideways, parks, and the curtilages of gov. building, like state house
  3. Speech cannot be banned all together, but it unclear if per se invalid or strict scrutiny
  4. All content based regulations are strictly scrutinized and therefore are virtual certain to be invalid
  5. Designated public forum
  • This is a non-public forum that the gov. has voluntarily opened to expressive activity by inviting speakers to come in an use the premises
  1. This is in theory akin to traditional public forum, bc gov. subject to same rules as traditional public forum with
  2. 3 special twists
  3. The gov. can limit the invitation to specified subjects
  4. can limit invitations to speaker identity
  5. Board of education is open to public participation, and can be limited to school related subjects
  6. Could also limit it to the ppl in the town and even to ppl who are parents of kids in the school
  7. If the invitation has been inconvenient because of cost of other issues it can take back the invitation and transform it back into a non-public forum
  • The answer if it is a designated public forum turns upon thegovernment intent
  1. This is a subjective test
  2. This really makes difference in accidental speech uses, for example speech that occurs bc someone jumped wall and starts speaking and not interfering with use of property, thus under objective test this would matter
  3. Thus accidental uses are irrelevant
  • The only things the government cannot do in a designated public forum
  1. Cannot discriminate on viewpoint
  2. Cannot act irrationally
  • Past practices can come in as evidence of discrimination in a present case
  1. Non-public forum (opposite end)
  • All gov. property that is not a public forum
  1. g. post offices, mailboxes,
  • In a non-public forum the gov. can exercise the rights of a private property owner

Only two constraints

  1. Any gov. restriction must be reasonable
  • Comes from the 14th amendment substantive due process that all gov action must be reasonable
  1. It must be viewpoint neutral
  • 2nd circuit broken down designated public forums into 2 sub categories
  1. Limited designated public forum
  • g. school board meeting
  1. General open designated public forum
  • Invites everyone, and cannot restrict certain viewpoints bc if they do they will

Government Speech

  • 1st amendment limits constraints gov can impose on private speakers, thus governments own speech is not subject to restrictions and can give its own view and not let anyone else speech
  • Other provisions do limit gov. speech through establishment clause or equal projection clause
  • Forum Analysis might overlap with Government speech when putting a permenant structure

Speech on Private Property

  • With assent of property owner
  • One has at least say rights as in traditional public forum and in practical matter they might be even greater
  • This is because augmented by speech autonym rights of home and it is very hard for gov. to show any countervailing interest

Total Medium Bans

  • May claim to be content neutral, but may be considered content based.
  • Therefore, get strict scrutiny

Religious Speech on Public Property

  • If the forum is open to the public you cannot bar religious speech.  Even though this is subject discrimination of religion, it is also viewpoint discrimination according to the court.
  • if you allow public groups to use a gym after school for events you cannot bar a religious group from using the same gym

Public Function Test (from Marsh v. Alabama- company town case)

  • Gov. has delegated function to private actor that is exclusively a power of the sovereign
  • Company time is a paradigm non-state actor
  • What is a non-state actor then?
  • Marguiles house with 3 acres, with non-streets
  • If marg throws out a jehova’s witness? -Not state action
  • Where do you get property rights?
  • State government
  • Thus with that property marg has what state like power?
  • Power to limit a person’s liberty on the land
  • Not to the same extent but in kind
  • This test is essentially a balancing of the rights of speaker against property rights of the owner

Student Speech Rights

Tinker – can’t punish student speech unless it can be shown speech is or is likely to materially/substantially disrupt the education process

-courts won’t defer to speculation

  • Exceptions:
  1. Fraser– school has right to prohibit obsence, vulgar, profane, and sexual speech (innuendo) on school grounds during the day
  2. Just being disrespectful doesn’t fit
  3. It is assumed that part of school’s mission is to impart civil discourse
  4. Hazelwood– school sponsored speech not subject to tinker
  5. Why?
  6. school sponsored mediums are non-forums
  7. Can be viewed as gov. speech
  8. Morse– mission exception –
  9. Speech that contradicts the school’s mission
  10. but this does not extend to political speech
  11. Can the school define it’s mission in other ways other than drugs?
  12. We don’t know yet
  13. g. guns can’t wear shirts with guns
  14. Don’t know how this plays out yet
  • Speech that takes place at a school sponsored event or activity counts as taking place on school grounds, for all the tests via Morse

4 possibilities for interpreting Tinker

  1. -Tinker extends to all student speech
  2. -Tinker protects allow speech that addresses political or another matter of public concern; unless it falls into a speech exception
  3. -Tinker protects student speech even if a matter of public concern, but not protected as much; aka weakened disruption standard
  4. Holdings are limited to facts of case

Does Tinker apple to non-high school students?

  • Do elementary school students have any speech rights?
  • Yes, according to Peck
  • Do University students have Tinker-limited speech rights?
  • Tinker doesn’t apply, university students have full speech rights
  • Does hazelwood apply to university?
  • Here there is a split in circuits saying hazelwood does or doesn’t apply at university level
  • 2nd circuit says that is a presumption it is a public forum, unless explicit thing saying school retains control in handbook or with newspaper
  • 6th and 7th circuit say that can impose hazelwood controls

Reasons to limit speech in school, 2 general rationals

  1. Self- defense rational
  • Must show disruption
  1. Teaching mission rational
  • School can suppress and punish speech without disruption
  • Historically this doesn’t extent to school high gates, except school sponsored events even if off school ground

Forum Analysis as an alternative theory for student speech rights

  • Gov. building exists to serve some special purpose
  • Thus it is a non-public forum, thus gov. is free to regulate speech in whatever way it wants
  • This is what school lawyer could argue (marguilies says they should argue this is smart)
  • Under this only viewpoint discrimination is needed, and if anything tinker diloutes from strict scrutiny

Over-breadth

  • By definition involves a facial challenge
  • A statute might have a chilling effect when it covers more than what it needs to by making speech unprotected, which should be protected.
  • Thus if the statute were more narrowly drafted in its application it would be allowed
  • Example- (houston v. hill)
  • court struck down statute for overbreadth which prohibited interfering with police because it would cover any type of contact with police including a normal conversation

Vagueness

  • Can be facial or as applied
  • There are two types of vagueness, either can support a facial or an as applied challenge
  1. Due process vagueness
  • Concern is that there is an absence of notice to the individual affected by the statute
  1. Thus these almost always arise from a criminal statute
  2. Aka this statute imposes sanctions without any notice to alter course of conduct
  • How does this play out in types of challenges
  1. As applied- say that the statute might give ample notice to most ppl to whom directed, but doesn’t give notice to me because it is imprecise at perrifferals
  2. Facial- only when so vague that is has no corebecause it is incapable of giving notice to anyone
  3. Facial vague will always be vague as applied
  4. First Amendment Vagueness
  • This occurs in valid access statutes which gives someone the duty to issue permits or whatever; but doesn’t spell out the requirements because it gives the official discretion
  1. As applied- same as under due process except that it applies with more bite
  2. Is legislation worded to give notice to affected parties and affected law enforcement personal?
  3. Facial vagueness has 2 theories
  4. Someone’s who’s conduct is clearly proscribed if it is insufficiently clear to a number of other speakers who’s speech might be chilled for another speech (aka vague as applied to other ppl)
  5. Is the statute so lacking a core that it would be vague in all it’s applications, like the due process vagueness but is applied with special bite
  6. People won’t speak because they are afraid to be punished
  7. It reaches other forms of speech

Prior Restraint

  • Facial
  • At least two types
  1. Licensing
  • Standard less licensing scheme, you need to get permission from someone and it provides no criteria for when to allow or not and/or no constraints on how soon the licensing official has to reply and therefore could wait to decide for so long that it is tanamount to a denial
  • By providing no guidance it opens the licensing scheme up to content based classifications and decisions
  • Thus it is akin to facial vagueness analysis under first amendment
  • Freidman requirements
  • Or if licensing official denies he can only do this for the briefest point so that he can get to court quickly and it must require court to make decision in the shortest time
  1. Judicial injunctions
  • If court does grant an injunction and you can’t speech
  • When can court issue a speech restricted injunction?  (benchmark is the Near v. Minnesota)
  1. When speech is unprotected e.g. obscenity
  2. Court can satisfy the standards that it advances the most compelling imaginably interest, and absolutely necessary, it has to be very important, it has to be least restrictive analysis (this is strict scrutiny standard for any content based constraint on speech)

Rights Ancillary to the Freedom of Speech

Freedom to not speak

  • Just like you have a right to speak you also have a right to not speak.
  • same rules seem to apply just in reverse

Self-identification requirements

  1. The court usually deal with this by asking if the self-identificaiton requirment likely to chill the associated speech
  2. But another way to look at this is that self-identification is speech itself, thus such a law, is content based because can’t speak unless disclosing personal info
  • Then yy doesn’t matter if chilling effect on accompaining speech
  • Why?
  • Content based restriction on speech, then you have strict scrutiny
  • The state will assert compelling interest
  • Such as, to protect integrity of election process (which is certainly compelling)
  • So ultimately whether identification requirement fails or not is whether there is a less restrictive speech alternative

Compelled Speech

  • You cannot limit rights of some speakers, merely to enhance the relative voices of others even when the voices that are being enhanced are disempowered voices

Money and Political Campaigns

Post- citizens the rules are simple

  1. Contributions to a candidate
  1. Intermediate review under buckley
  2. But
  • Difference between corporations and individuals
  • Corporations cannot directly advocate for or against a candidate
  • But this is pretty easy to avoid
  1. Expenditures by candidate,
  1. All other Expenditures
  2. Strict Scrutiny
  • What gov interests
  1. Interest in avoiding corruption and the appearance of corruptions
  • This is a compelling interest
  • The key issue, is if there are less restrictive ways to do this?
  • Yes, there are bribery and disclosure laws
  1. In equaling out and making everyone same level
  • This is an illegitamate gov interest
  • Can’t minimize speech of some to maximize speech of others
  • No one is actually arguing that the giving of money is speech

Religion Clauses

  • 2 religion clauses are establishment and free exercise- they serve same person, they create edifice from freedom or expression and free conscious
  • But sometimes they clash
  • Free Exercise Clause Trumps the Establishment Clause

Free Exercise

  • Prior 1990– the standard of review was
  1. When gov .action discriminates against religion (practices or groups for disfavored treatment) either on the face or through leg history then you have strict scrutiny
  • This rare today
  • Like rarely outward racial discrimination
  1. It is more common arises from indifference or insensitivity
  • Pass law banning drugs and this blocks ppl from using drug who need to for religion

Aka a facial valid law that incidentally burdens

  • Prior to 1990 this was strict scrutiny just like #2
  • These were
  1. Serbert- SC passes law that makes unemployment benefits available on condition that ppl can be available to work on Saturday
  • Person who has religion with Saturday as day of rest, thus not elligible for benefits
  • Court applies strict scrutiny and finds that the state must give that particular claimant an exception
  • Why?
  • State says interest is in avoding fraud
  • Even assuming this is compelling
  • There are less restrictive alternatives to smoke out cliam by investigation of each calim
  • Thus the commpeling interest was maximizing administrative convenince, which is not a compelling interest
  1. Yoder
  • State has law of compulsory eduction
  • Amish ppl object but only after elementary school
  • The reason because kids go k-8 without encountering non-amish ppl
  • Court applies strict scruinty
  • State might have compelling interest in education, but not a compelling interest in that extra year or two
  • Especially not for amish, bc amish have not had problem of being productive members of their community
  • Thus Amish entitled to selective exception
  • Back then the line in the sand was the possible appears of giving favor or discrimination
  • The saying was that the free exercise clause prevails over establishment in cases of direct conflict between the 2
  • The gov can accommodate an exception to a general rules without violation establishment clause whenever the law would burden some core/central religious obligation of objector and the state cannot show a compelling interest for removing it
  • Thus the establishment clause allows accommodation whenever the free exercise clause says that it has to
  • This was a clear bright-line rule
  • Other accommodations are presumptively invalid for most part
  • US v. Hamel
  • Free exercise doesn’t require religious objectors to be accommodating from serving in war, but the gov. can allow an objection if it wants

Post 1990 Rules-Smith

  • No longer a fundamental right to be accommodated
  • The refusal triggers only rational basis review
  • Thus free exercise clause not implicated in a facial neutral law
  • Only get strict scrutiny is when there is a law that overtly discriminates on the face or in its legislation history (strict scrutiny)
  • Or when there is law that directly burdens religious practice on its face or through leg. history
  • But you also have the strict scruntiny protection from equal protection
  • Laws that are neutral which incidentally burden religious speech- just have to pass rational basis review.
  • What happens to sherbert and yoder?
  • They are distinguished and left to their facts
  • Sherbet the administrator had the ability to exempt ppl under good cause
  • This opens the possibility of discriminatory application
  • Yoder
  • There was also a parental autonomy claim which is a fundamental right
  • Thus you had a hybrid right under strict scrutiny
  • Thus free exercise claim is redundant
  • Today also, free exercise prohibits coercion
  • But you don’t need free exercise for this to happen but these would also be prohibited by freedom of association through compelled speech

Subtext

  • Judges writing rules in 1940-1980s they were not generally ppl who were religious, they didn’t hold religion in high regard
  • These ppl don’t have a lot of time for religion and don’t have a lot of time for state and local decision making
  • The judges saw these ppl as oppressors
  • Justices today are very religious and trained as post-brown era (5 members are roman catholic)
  • They no longer see state gov. as oppressors today
  • Don’t seem same need to protect polical minorities
  • They feel that the states know about laws banning alcohol and drugs that they will make exceptions for wine (catholic) and peyotee.

Establishment Clause

Rules Today- 4 basic tests

  1. Lemon Test- lemon case
  2. Endorsement Test- lynch v. donnley
  • Same judges that except lemon also, seem to accept endorsement test
  1. Coercion Test
  2. Non-prefernetialism Test
  • Same judges that accept # 3 and 4 reject # 1 and 2
  1. Lemon Test
  • Gov. action violated establishment clause if fails 1 of these 3 prongs
  1. Was the gov’s purpose religious, or
  2. Was primary of principle effect either to advance or inhibit religious, or
  • Couldn’t advance one religion over another; also couldn’t advance all religion against no religion
  1. Does gov. action cause excessive entanglement between gov. and religion
  2. Endorsement
  • Can’t favor one religion over another, and can’t favor religion in general over non-religion

Questions

  1. Is endorsement different from lemon?
  • Could be or might be the same thing because it is a short hand for lemon
  1. If is separate
  • Does it replace lemon or should it replace lemon?
  • If doesn’t replace lemon, then we have 2 rules, endorsement for public displays and lemon for school use
  1. Is it applicable only when gov actually endorses practices or believes, or is there such a thing as apparent endorsement that reasonable ppl will compute to the gov?
  • Thus does gov. have an affirmative obligation to disassociate or does gov. endorse by failure to disassociate
  1. Coercion
  • Problems with coercion analysis you don’t need establishment or free exercise clause because the speech clause and ancillary rights of association
  • What do we mean by coercion? does this also mean sublet psychological coercion?
  • High school         graduation prayer
  • Know was say must go to graduation or that you have to stand or participate in order to get diploma
  • But there is tremendous peer pressure and that is coercion enough to strike down coercion
  • However, when you extend coercion to psychological pressure  (this was view of kennedy)
  • What other sorts of gov. action can have a psychological coercion effect?
  • Any religious symbol in and public property or gov property
  • Thus any action to support religion would cause coercion
  1. Non-preferentalism
  • Government may not discriminate among different organized sects
  • This does not prevent gov. from acting in support of religion in general
  • But going back to purpose of establishment clause
  • If to prevent favoritism among established sects in the only ones to start a civil war
  • Don’t have to worry about religiously unaffiliated, agnostics, and atheists
  • But if purpose is to prevent ppl from having hurt feelings?
  • Then you must think about feelings of atheists or other non-religious
  • Some justices say shouldn’t think about this in the way the framers didn’t because things are very different from modern world with a more diverse sent of laws
  • Issue with this test, is that even the equal protection clause prevents preferentialism

Public Funding of Religious Schools- there are 3 tests

  1. Will it advance religion in any way?   Because Advancement not allowed/ money can’t go directly  to schools, kids, parents (Dissent in helms, like strict scrutiny)
  2. Advancement doesn’t matter as long as benefits go to parents, if class in notionally defined broader than just that which is compromised of religious groups thereby encompassing more (plurality in helms, like rational basis)
  3. Look at what actual benefits go to in reality, if mostly religious then it is not cool (O’Connor)

Reasons behind Clause

  1. ?
  2. To keep relgion out of politics in order to prevent political divisiveness
  1. Why?
  2. Religious politics get violent
  3. Ppl won’t change views because it is aligned with self

Where do we draw the line of when state must accommodate religion?

  • The line is blurry
  • 2 guideposts
  1. Bullock v. Texas p. 634
  • At very least the state may accommodate religious practices when reasonable legal minds could make out reason for mandatory accommodation
  1. When gov. has imposed a burden on religious practice then the state may eliminate the burden if it wants to
  • This examples religious vouchers and getting rid of a sabbath closing day law

When does accommodation go to far (aka is beneficiary class limited to only those getting the burden)

  • Thorton v. caldor p. 632
  • State passed statute prohibiting the firing of employees who refuses to work on sabbath
  • The law removed the at will employee firing for any reason burden
  • Why did it go to far?
  1. The law was absolute;  thereby imposing too great a burden
  • Aka no hardship exceptions, which is different for title 7 hardship exception
  • But in actuality it was over and under inclusive receiving strict scrutiny
  • Why is under inclusive fatal to religious accommodation?
  • It suggests a impermissible religious purpose

Public Employees

  1. Has the employee been punished for his or her speech in a non-trivial way, such as being discharged, demoted, or transferred?  (If not, the courts are unlikely to consider the First Amendment claim.)
  2. Did the expression for which the employee was punished relate to a matter of “public concern?”
  • If not then is not protected
  1. If the government says that it had additional reasons for punishing the employee that do not relate to the employee’s expression on matters of public concern, would those additional reasons have resulted in the same punishment that the employee suffered?  (Unless the expression on a matter of public concern was a “but for” cause of the punishment–but for that expression the employee would not have been punished as he or she was–the employee loses on the First Amendment claim.  The government, however, has the burden of proof of showing that the other reasons would have produced the same punishment. Doyle)
  2.  If the employee’s speech did relate to a matter of public concern, is the government’s ability to “efficiently provide services” nonetheless adversely affected in a substantial way?  (If so, the employee is out of luck.)
  3.  With respect to political affiliation of public employees, the Court asks whether party affiliation is an “appropriate requirement” for the position, taking into account such factors as whether the employee makes important policy decisions or is in a position to thwart the policy directives of superiors.  If not, the First Amendment prohibits consideration of political affiliation in either hiring, promotion, or discharge decisions

How to approach a question

Questions Court asks

  1. Is this state action?
  1. If an odd case use the public function test to determine if the private actor is actually taking place of the government
  1. Is this speech?
  1. Does this fall into one of the non-speech categories?
  2. Fighting Words
  3. Hate speech (not officially a non-speech category)
  4. Defamation (3 categories of ppl which speech is directed at)
  5. Public figures
  6. Private figures implicating matters of public concern
  7. Private figures not implicating matters of public concern
  8. Obscenity/Indecency
  • If not speech, then no protection of 1st amendment, thus you only get the  deminus protection of substantive due process in 14th amendment
  • If it is speech continue to #3
  1. Why is the gov. trying to restrict the expression?
  1. Context concerns, or (applies strict scrutiny)
  • Collateral to content –
  • Get even clear examples of R.V.A
  1. Makes difference is flag burning because it wants to discourage burning flag (content), or
  2. Is it because don’t want burning things in public (conduct)
  1. Is this content based or content neutral?
  1. If neutral –
  2. Speech Specific?
  3. Is this a time, place, and manner restriction?
  4. If expressive conduct
  5. O’brien

Cohen– Questions the Court asks

  1. Is this speech?
  • If no speech, then no protection of 1st amendment, which is deminus protection of substantive due process in 14th amendment
  • This is speech, so now
  1. Why is the gov. trying to restrict the expression
  1. Context concerns, or (applies strict scrutiny)
  2. Collateral to content –
  • Get even clear examples of R.V.A
  • Makes difference is flag burning because it wants to discourage burinign flag (content), or
  • Is it because don’t want burning things in public (conduct)
  • Sound truck, might be different because trying to enhance or magnify effectiveness of speech
  • If it is not actually speech it is ancilary to speech
  • Speech type activity
  • But gov. interest in suppresing sound trucks because there is issue with privacy and peace and quite

2 things matter

  1. Is it speech or not
  2. What is aimed at
  1. Higher level of scrutiny comes into place when gov. aims at the content in place
  • This is a general rule, but not always true

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