Constitutional Rights: Free Speech

A regulation is content-based if it applies to some speech (not all) depending on its content. – STRICT SCRUTINY

A regulation is content-neutral if it regulates all speech the same, regardless of its content. – INTERMEDIATE SCRUTINY

• Two types of content-based restrictions:
• 1. Subject matter restrictions (i.e. no political advertising on this billboard)
• 2. Viewpoint restrictions (i.e. Republicans may not advertise) – SC has NEVER upheld a viewpoint based restriction

• Exceptions:
• - Categories of speech that are unprotected or less protected

• - Content-based restrictions within an unprotected category of speech are subject to strict scrutiny unless the basis for the restriction
• consists entirely of the very reason the entire category of speech at issue is proscribable (e.g., prohibitions only on obscenity that is the most offensive in its lewdness, criminalizations only of threats of violence against the President, advertising regulations only of those industries where the risk of fraud is greatest)—see R.A.V. v. City of St. Paul (discuss later).

- Content-based laws which have a permissible content-neutral purpose (e.g., avoid undesirable secondary effects).

- Content-based distinctions by government acting as proprietor, educator, employer, or patron.

• 1. Speech that incites to violence or illegal acts
• ...... Bad tendency test
• ...... Clear and present danger test (reasonably probable)
• ...... Incitement test (Brandenburg):
• ............>Directed at inciting or producing
• ............>Imminent illegal action
• ............>And is likely to produce illegal action

2. True threats

• 3. Fighting words
• ......Likely to cause a violent response against speaker (unprotected)
• ......An insult likely to inflict immediate emotional harm (protected)

• 4. Offensive speech
• ......Speech may not be regulated or punished simply because it is offensive
• ......Default rule in public sphere is that audience must avert eyes and ears
• ......Captive audience - those forced to hear speech within their home - right to privacy
• ......Hate speech is protected

• 5. Obscenity
• What is obscene test:
• 1. Prurient interest and patent offensiveness are to be judged by local “community standards.”
• 2. Material must be patently offensive; nudity alone is not enough to make material obscene.
• 3. Literary, artistic, political, or scientific value is to be judged by “reasonable person” standard.
• Limits:
• - Cannot ban merely because of disapproval of ideological message
• - Cannot ban possession in home, but right to possess does not mean right to receive
• - Can ban sale, distribution, and public display even to willing recipients

6. Child pornography - ok to ban pornography, but not virtual pornography

• 7. Sexually-explicit (but not obscene) Speech
• - Generally protected
• - Nudity bans
• - Pornography is "low value" speech - zoning regulation aimed at secondary effect triggered intermediate scrutiny

• 8. Commercial Speech
• - Is the speech advertising ILLEGAL activities or FALSE or DECEPTIVE advertising
• - Is the government’s restriction justified by a SUBSTANTIAL GOVERNMENT INTEREST?
• - Does the law DIRECTLY ADVANCE the government’s interest?
• - Is the regulation NO MORE EXTENSIVE THAN NECESSARY to achieve the government’s interest?

• 1. Speech regulation imposed by government?
• 2. Restricting because of content?
• - No = Intermediate scrutiny
• - Yes:

• 1. Protected by first amendment? (No = restriction OK)
• 2. Commercial advertising? (Yes = Intermediate scrutiny)
• 3. Otherwise, STRICT scrutiny: Compelling state interest PLUS least restrictive means

• 3. Other circumstances:
• - Special capacity (lower scrutiny/special rules)
• - Compelling speech instead of restricting (special rules)
• - Restricting ability to associate for expressive purposes (special rules)

• EXCEPTIONS
• - Inciting imminent lawless action (and likely)
• - False statement of fact
• - True threats
• - Fighting words (except merely offensive, can sometimes regulate on air waves, can regulate in home)
• - Obscenity and child pornography (except non-obscene sexually-explicit speech, virtual child porn, obscene speech in home)
• - False/misleading commercial advertising or about unlawful activities (Commercial advertising = intermediate scrutiny)

• Where does intermediate scrutiny apply?
• 1. Content neutral (time/place/manner based) restrictions
• 2. Conduct component of expressive conduct
• 3. Conduct based on its face but aimed at secondary effects
• 4. Community speech/airwaves (Radio, TV, etc.)

• Intermediate Scrutiny:
• 2. Is the regulation within the constitutional power of government to enact?
  4. Does the regulation further an IMPORTANT or SUBSTANTIAL government interest?
  6. Is the governmental interest UNRELATED to the suppression of free SPEECH? (If state interest IS aimed at suppression of speech, strict scrutiny is required.)
  8. Is the incidental restriction on speech NO GREATER THAN NECESSARY to achieve that interest? (means/end analysis)

• Public Forums
• 1. Speaker access to public streets and parks: Always
• 2. Speaker access to public places other than streets or parks.
• - Early approach: compatibility of speech with normal or principal uses of property
• - Categorical approach (what is/is not public)
• - Modern approach: Traditional (Strict for content based, Intermediate for content neutral), Designated (Unlimited/Open to All - Traditional test, Limited based on speaker identity or topic/subject matter - limitation must be reasonable and viewpoint neutral), or Nonpublic (Reasonable and viewpoint neutral)

• Time/Place/Manner Restrictions
• 1. Content-based restrictions - STRICT SCRUTINY
• 2. Content-neutral TPM restrictions - INTERMEDIATE SCRUTINY:
• ...A. Is the law CONTENT-NEUTRAL?
• ...B. Does the law serve a SIGNIFICANT GOVERNMENT INTEREST? (end)
• ...C. Is the law NARROWLY TAILORED to advance that interest? (means)
• ...D. Does the law leave open AMPLE ALTERNATIVE CHANNELS for communication of the information?

• Public Schools
• Noncurricular student speech: The “material disruption” test.
• TEST for curricular/quasi-curricular activities: Educators may exercise control over style and content of student speech in school-sponsored expressive activities so long as restrictions are “reasonably related to legitimate pedagogical concerns.” These concerns include ensuring that students:
• 1. Learn appropriate lessons.
• 2. Are not exposed to inappropriate material given their ages.
• 3. Do not mistakenly attribute the viewpoints of particular speakers to the school.

• Subsidized by Public Funds
• Principle: Government cannot condition a benefit on the requirement that a person forego a constitutional right. Corollary: Government may not deny a benefit to a person because he or she exercises a constitutional right.

• The Right Not to Speak
• While the state is not subject to Free Speech Clause limitations in its own speech, it may not force individuals to endorse or communicate its message.
• Has government compelled person to utter or be associated with undesirable speech? If not, then it warrants mere rationality review.
• If compelled speech of a particular content, then it warrants STRICT scrutiny as with content-based restrictions on speech. If speech is compelled for reasons unrelated to content, then it warrants INTERMEDIATE scrutiny.

• Freedom of Association
• Government interferes with the right of association by:
• 1. Prohibiting or punishing membership in a group (e.g., jobs, licenses).
• 2. Requiring disclosure of group membership
• - Government may require disclosure of membership, where disclosure will chill association, only if it meets strict scrutiny.
• - But okay to compel candidates to disclose their political political campaign contributors
• 3. Restricting activities centrally linked to purpose of association
• 4. Compelling unwanted association (the right not to associate—analogue to the right not to speak)
• - Compulsory fee laws and regulations.
• - Laws prohibiting discrimination as forcing association

• The religion clause’s twin protections:
• 1. Free exercise.
• 2. No establishment.

• Four views of original meaning:
• 1. Federalism: No establishment provision enacted to protect existing state establishments of religion from federal interference (Problem: no establishments to protect when amendment enacted)
• 2. Strict separationism (the secular state): No establishment provision requires complete separation of church and state; state must be agnostic on matters of religion. (Problem: reflects hostility to religion)
• 3. Nonpreferentialism: No establishment provision permits governmental aid to religion, so long as no particular religion is preferred. (Problem: Language specifically rejected by framers)
• 4. Protection of individual religious conscience.

• Free Exercise
• Laws burdening religious exercise: No free exercise claims from facially-neutral laws (subject only to minimum scrutiny/rationality review).
• Exceptions: Compelling interest test (strict scrutiny) used reserved only for neutral laws involving:
• 1. Regulation of religious belief
• 2. Flat taxes that operate as prior restraint on religious exercise (but not generally applicable taxes)
• 3. "Hybrid" claims involving free exercise plus another right such as speech or privacy
• 4. System of exemptions involving "individualized governmental assessment"

Laws discriminating against religion. Court rejected any distinction between belief and conduct under the free exercise clause—burdens on religiously motivated conduct as well as conscience trigger strict scrutiny.

• No Establishment
• Lemon test
• 1. When predominant purpose is religious rather than secular.
• 2. When the primary effect is to advance religion. OR
• 3. When there is excessive entanglement between government and religion.
• Endorsement test
• 1. Government endorses relgioin when it conveys or attempt to convey a message that religion or a particular religious belief is favored or preferred
• 2. Government endorses religion when it sends a message to nonadherents that they are political outsiders.
• Coercion test
• Government establishes religion when it coerces persons to participate in or support any religion or its exercise.
• Types:
• 1. Direct coercion: by force of law and threat of penalty for noncompliance
• 2. Indirect coercion: not backed by legal sanction for noncompliance, but rather depends on other circumstances such as social pressure
• History and tradition test
• Whether practice is "deeply embedded int he history and tradition of this country."

• Financial Aid to Religion
• Two overriding principles—
• 1. Neutrality: Do benefits flow to nonreligious as well as religious groups as defined by secular, nondiscriminatory criteria?
• 2. Private choice: Does aid reach religious groups as result of independent private choices of individual recipients (i.e., no state action)?