Categories & Cases Content-Based v. Content-Neutral Turner Broadcasting System, Inc. v. FCC, 1054 Subject Cable programs Rule “content neutral regulation will be sustained under the 1st A if it advances important govt. interest unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests” Test Test: Law that distinguishes favored from disfavored speech on basis of ideas or views are content-based. Policy Fear that govt. is trying to suppress dissenting opinions. Speech should be regulated evenly How is it determined if its content based? Boos v. Barry, 1058 Political signs Test content-based regulation: Analysis: Is this a compelling state interest? Assuming yes, is this the least restrictive way of dealing with this problem? Content neutral time, place, and manner regs. are acceptable as long as they are designed to serve a substantial govt. interest and do not unreasonably limit alternative avenues of communication. Laws which are aimed at secondary effects are content neutral. To demonstrate secondary effects a city must only show it relied upon evidence it reasonably believed to be relevant to the problem that the city addresses. The govt may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake. Govt cannot suppress lawful speech as a means to suppress unlawful speech. Govt cannot us treasury as a means to impose control on an important medium of expression. Problems in applying the distinction between content-based and content-neutral Place limitation nude theatre. City of Renton v. Playtime Theaters Inc., 1071 (later applied in Pap‟s) NEA v. Finley, 1074 US v. American Library Assn. Inc., 1078 Vagueness & Overbreadth Coates v. City of Cincinnati, 1085 Schad v. Borough of Mt Ephraim, 1087 Board of Airport Commn. of LA v. Jews for Jesus, 1090 Prior Restraints NEA Grants criteria No fed lib. Funding w/o blk sftware Reg. states > 2 people can‟t assemble, illegal to be annoying to passers. Because appellants claims are rooted in the 1st A they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own. A statute may be invalidated on its face only when the over breadth is substantial. Policy reasons why prior restraint are seen as worst form of speech regulation 1. More inhibiting than subsequent punishment 2. Suppression through pen stroke more likely than through criminal prosecution 3. Brings govt scrutiny to far more speech 4. Shuts off communication before it takes place and thus it never reaches the marketplace. 5. Less opportunity for public appraisal and criticism 6. Dynamics of system drive toward excesses A free society prefers to punish the few who abuse rights of speech after they break the law than throttle them and all others beforehand. A person violating an unconstitutional law may not be punished, but a person violating an unconstitutional prior restraint generally may be punished. Applies only to procedurally proper court orders. A law that is valid on its face must be complied with. A failure to follow the procedures or to challenge the denial of a permit through available administrative and judicial challenges will preclude later assertion that the speech was 1st Amend protected. Paper found malicious-no publish Exceptions to 1st prior restraint: Policy: The chief purpose of the 1st When nation at war, otherwise C speech may be unC. Amend is to prevent previous restraints upon publication. Actual obstruction of recruiting service Court Orders as Prior Restraint Near v. State of MN ex rel. Olsen, 1095 Court Orders to Protect National Security NY Times v. US*, 1097 Prior restraint of Vietnam Papers (Freedom of Association) Licensing as a Prior Restraint Lovell v. City of Griffin, 1112 Statute made it illegal to distribute pamphlets in the city w/o approval of city manager. Watchtower Bible & Tract Society of License requirement to dist. Lflts. NY Inc. v. Village of Stratton, 1113 Publication of sailing dates of troop transports Obscenity Inciting of violence Brennan Test: Test: Inevitably, directly, and immediately (Compelled Speech>i.e. no anonymity) (Secondary effects SI) Liberty to circulate is as essential to the 1st Amend as liberty of publishing; indeed, without the circulation, the publication would be of little value. Licensing or permit laws are allowed only if the govt has: an important reason for the licensing and only if there are: Clear criteria leaving almost no discretion to the licensing authority, and; There must be procedural safeguards, o i.e. prompt determinations as to license requests, and o judicial review of license denials Rule: only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression. Policy: The courts are very concerned with any law which gives the govt the power to allow speech it likes but deny speech it disfavors. Lakewood v. Plain Dealer Pub. Co, 1118 Procedural Safeguards Thomas and Windy City Hemp Dvlpment Brd v. Chicago Park Dist 1120 Mayor must ok newsrack placement. Park sued by MJ advocates over permit law. Procedural safeguards in order to avoid constituting an invalid prior restraint: Any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained. Expeditious judicial review of that decision must be available The censor must bear the burden of going to court to suppress the speech and must bear the burden once in court. Rule: Time, place, and manner regulation must contain adequate standards to guide the official‟s decision and render it subject to effective judicial review. A statute is presumptively inconsistent with the 1st A if it poses a financial burden on speakers because of the content of their speech. The right to speak and the right to refrain from speaking are complementary components of the broader concept of „individual freedom of mind. Wooley v. Maynard. The right not to speak includes a right not to disclose one‟s identity when speaking. Talley v. CA Is the compelled speech related to an If there is any fixed star in our affirmation of belief or conscience? constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Strict scrutiny: When a law burdens core political speech we apply exacting scrutiny, and Political speech by its nature will we uphold the restriction only if it is narrowly tailored to serve an overriding (compelling) sometimes have unpalatable state interest. consequences, and, in general our society accords greater weight to the value of free Prohibitions on Compensation US v. National Treasury Employees Union, 1127 Compelled Speech (Freedom of Religion SI) (Govt speech) West VA State Bd. of Educ. v. Barnette, 1129 Govt. emp. Not allowed pay for speech (Freedom of Association SI) (Group Inclusion) Mandatory flag salute for kids McIntyre v. OH Elections Commn, 1132 OH law forbids anonyms campaign leaflets. speech than to the dangers of its misuse. Buckley v. American Constitutional Law Foundation, Inc,, 1136 Johanns v. Livestock Marketing Assoc., S109 CO regulation required petitioners wear name tag, no anonymity. Beef ind. objects to tax for pro-beef ad. Unconstitutional Conditions Speiser v. Randall, 1138 Rust v. Sullivan, 1139 Legal Services Corp. v. Velazquez Rumsfeld v. FAIR Incitement Clear and Present Danger Schenck v. US Frohwerk v. US Debs v. US Abrams v. US Reasonableness Test Cases Gitlow v. NY Whitney v. CA Govt may support valid programs and policies by taxes or other exactions binding on protesting parties. Two types of speech under Johanns: When an individual has to deliver a message he disagrees with. Compelled subsidy speeches: When law requires an individual to subsidize a message he/she disagrees with, and the message is delivered by a private party. This doctrine is the principle that the govt cannot condition a benefit on the Concern is that govt is buying speech. requirement that a person forego a constitutional right. If it likes the speech, it subsidizes the speech, if it doesn‟t, will not. SpCt‟s decisions in this area appear inconsistent. Problem is govt power and reach If you characterize it as a refusal to subsidize, C. Distorts market place of idea. If you characterize it as a limit on speech, then unC. Vets must make vow to receive tax break Statute refused money to Dr.s who The govt can, without violating the C selectively fund a program to encourage certain activities it believes to be in the publics interest, counsel abortion opt. without at the same time funding an alternative program which seeks to deal with the problem in a another way. St.funded legal co. cannot challenge welfare law. To receive Fed. $, law schools must allow military recruiters. Unprotected Speech (Secondary effects SI) (Indecency SI) (Audience) (Directed v. non-directed) (Expressive Conduct SI) (Forum SI) Seriousness of harm Imminence of harm Likelihood of harm D distributes leaflets urging men to not Freedom of speech is not absolute. Test: The question in every case is whether the words used are used in such enlist. circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right prevent. It is a question of proximate and degree. Newspaper criticized WWI. Speech advocating socialism. D published disloyal language. Upholds the law and its applications so long as the government‟s law and prosecution were reasonable. D convicted of criminal anarchy Every idea is an incitement. Eloquence may set fire to reason. D convicted of advocating govt. No danger flowing from speech can be deemed clear and present, unless the incidence of overthrow the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. (Defines imminent) Ds convicted of advocating rev. Hand Test: In each case courts must ask whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger. Risk X Harm = right to suppression Brandenburg Test: Incitement must meet the following requirements: Imminent harm A substantial likelihood of producing illegal action An intent to cause imminent illegality. Risk Formula Approach Dennis v. US Brandenburg v. OH At a KKK rally, leader made racist comments Hess v. Indiana, 1173 NAACP v Claiborne Hardware Co., 1173 Fighting Words (Communicative Conduct SI) (Secondary effects) (Audience) (Intimidation) (Directed v. non-directed) (Indecency) (Forum SI) Chaplinsky v. NH, 1174 Gooding v. Wilson, 1177 R.A.V. v. City of St. Paul, MN, 1179 (Contrast with VA v. Black, there, statute focuses on the intimidation not the speech.) Feiner v. NY, 1186 (NOT FOLLOWED SINCE BUT NEVER OVERTURNED.) Gregory v. City of Chicago, 1188 Racist Speech Beauharnais v. Il, 1190 (NOT GOOD LAW BUT NEVER OVERRULED.) VA v. Black, 1193 (Contrast w/ RAV on test-In RAV, no intimidation) Obscenity Does not answer how imminence and likelihood are to be appraised. P arrested for saying “We‟ll take the fAdvocacy of future lawlessness is not ing st. later” after the police had cleared incitement. the street. If we catch you going in there, we‟ll The mere advocacy of the use of force or violence does not remove speech from the protection of the 1 st Amend. break your neck Why not punish the violent person rather than speaker? Should you punish speech because it is deeply offensive or upsetting? Why wait till violence? Allows audience to silence adverse opinion. Crowd tends to overestimate effect of speech. Problem of Racist Speech Some deem racist speech undermines the equality aspect of the constitution and argue it is a form of verbal assault that should be punished. NH law made it crime to utter offensive Where speech is likely to cause a violent reaction against the speaker. words. Where the words spoken cause an immediate emotional harm. Used abusive language misdemeanor The statute must be carefully drawn or be authoritatively construed to punish only GA statute. protected speech and not be susceptible of application to protected speech.” Burned cross on yard of black family. The state cannot regulate within an area of unprotected speech and cover only certain categories of unprotected speech. Where the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from 1st A protection, is also neutral enough to from the basis of distinction within the class. Worst examples of a type of speech can be regulated. Where the restriction of speech is meant to prevent secondary effects. P arrested for disturbing the peace when Situations where speaker may be silenced if speech is inciting audience: he gave a political speech from a car Crowd control impossible. loudspeaker, stirring the crowd to act Speaker has ignored the police. restless and push. When cop asked P to The speaker has provoked the reaction. stop he didn‟t. Convictions for disturbing the peace The 1st A requires that the police try to control the audience that is threatening violence and stop the speaker only if crowd control overturned when civil rights is impossible and a threat to breach of the peace is imminent. demonstrated were angrily confronted. Hate Speech: Conflict between equality and free speech. Hate speech can perpetuate inequality. Free speech is an important value. P convicted under statute making it a If libel against an individual is crime to sell, advertise, publish, etc, unprotected, than libel against a group is items that portrays the depravity, unprotected as well. criminality, etc of a class of citizens based on race, color, creed, or religion. P convicted under a VA statute making True Threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of it a crime to burn a cross with intent to violence to a particular individual or group of individuals. Intimidation in the constitutionally proscribable sense of the word is a type intimidate a person or group of people. of true threat, where the speaker directs the threat at a person or a group of people with the intent of placing the victim in fear of bodily harm or death. (Indecency SI) (Location SI i.e. Stanley) Roth v. US, 1203 Case deals with the constitutionality of a criminal obscenity statute. Court overturned an obscenity conviction w/o an opinion. Done 30 > X. Owners if an adult theater were charged under GA law for screening obscene films. Case deals with the conviction of appellant for mass mailing flyers advertising adult material under CA penal Code for distributing obscene material. Prurient: Shameful or morbid interest in nudity, sex, or excretion. Words really don‟t offer a guide Obscene material is material which deals with sex in a manner appealing to prurient interest. Redrup v. New York, 1205 Paris Adult Theatre I v. Slato, 1205 (Douglas dissent, no attainable, clear standard.) Miller v. CA, 1208 (Sub-issue of Captive Audience) The states have long recognized a legitimate int. in regulating the use of obscene material. Miller test: Basic guidelines for the trier of fact must be (still used today) 1. whether average person applying contemporary community standards would find that the work, when taken as a whole, appeals to the prurient interest; 2. whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined be the applicable state la: a. Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated b. Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibitions of genitals. 3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (LAPSE Values) State offense must be limited to works that visually depict sexual conduct by children below a specified age. The category of sexual conduct proscribed must also be suitably limited and described. Main reason is to stop the production. Different justification than restricting speech. Here, speech is punished to stop production. Child Pornography NY v. Ferber, 1213 Ashcroft v. The Free Speech Coalition, 1216 Case deals with constitutionality of NY criminal statute prohibiting persons from knowingly promoting sexual performance by children under the age of 16 by distributing material depicting such performances. Whether 1996 CPPA abridges the freedom of speech. CPPA extends the federal prohibition against child porn to simulated material. Speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. The govt. may not suppress lawful speech as the means to suppress unlawful speech. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. Protected but low value speech There is a category of speech that is not obscene and is thus 1st A protected, but is deemed of low value, and thus the govt. has wide latitude to regulate such expression. (Secondary Effects SI) (Symbolic Speech SI) Dispersion statutes Concentration statutes Zoning Ordinances Young v. American Mini Theatres, Inc., Deals with a Detroit zoning ordinance A city‟s interest in attempting to preserve the quality of urban life must be 1223 that distinguished adult movie theaters accorded high respect. from normal theaters based on content A city must be allowed a reasonable opportunity to experiment with solutions to of films being shown. admittedly serious problems. City of Erie v. Pap's A.M., 1227 Case deals with a nude dance ban by the Renton: To demonstrate secondary Barnes Test for regulating symbolic speech: (Secondary effects) city of Erie effects a city must only show it relied “A govt regulation is sufficiently justified if it is upon evidence it reasonably believed to be within the const power of the govt; if it furthers an important or substantial govt relevant to the problem that the city interest; addresses. if the interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged 1st A freedoms is no greater than is essential to the furtherance of that interest.” Govt. techniques for controlling Obscenity/Child Porn Stanley v. GA, 1231 P caught with obscene materials Private possession of obscene material not If the 1st A means anything it means that a State has no business telling a man, sitting Refuse to extend holding in Reidel. Contrast with drug possession) Osborne v. OH, 1233 Profanity and Indecent Speech Cohen v. CA, 1234 Related issues: Fighting words, Captive audience, confiscated in a legal raid on his dwelling. He was subsequent convicted under GA law which makes it a crime to privately possess obscene material. Case deals with conviction of appellant for private possession of child porn. (Fighting Words SI) (Intimidation SI) The D, while in a county courthouse corridor, was wearing a jacket bearing the plainly visible words "Fuck the Draft." a crime. alone in his own home, what books he may read or what films he may watch…. (Commercial Speech) (Captive Audience SI) Test for Captive Audience: The ability of govt 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 intolerable manner. (Communicative Conduct SI) Captive audience argument: We ought to be able to protect people who do not want to be exposed to this speech. When you prohibit certain words, you prohibit ideas. “Nuisance may be merely a right thing in the wrong place.” Broadcast Media FCC v. Pacifica Foundation, 1237 (This is the case against which other cases in this area are measured) Sub-issue-Captive Audience Telephone Sable Comm. of CA Inc. v. FCC, 1240 Uniquely pervasive presence Uniquely accessible to children A man who had heard “the seven words The C protection accorded to a you can‟t say on TV” broadcast while communication containing such patently driving with his young son complained offensive language need not be the same to the FCC. It then issued an order in every context. holding that the owner of the radio station was subject to administrative sanctions. Recipient must take affirmative steps to receive the communication. P Co. that offered sexually oriented To serve a legitimate interest, the govt may create narrowly drawn regulations prerecorded phone messages, sued, designed to serve its interests without unnecessarily interfering with 1 st A challenging the indecency and obscenity freedoms. statute as unconstitutional. Sexual expression which is indecent but not obscene is protected by the 1 st Amendment. The govt has a compelling interest in protecting the physical and mental wellbeing of minors; this interest extends to shielding minors from the influence of literature that is not obscene by adult standards. The Internet Reno v. ACLU, 1242 Ashcroft v. ACLU, 1245 (Use in ANY obscenity essay) Appellees sought a declaratory judgment deeming the Communications Decency Act of 1996 an unconstitutional violation of U.S. Const. amends. I and V. Attorney General contended that COPA, by criminalizing commercial Internet postings which were harmful to minors unless the age of the recipient was verified, served the proper congressional purpose of protecting minors. Petitioners challenged three provisions of Cable Television Consumer Protection and Competition Act of 1992 (Act) related to broadcast of programming that depicted sexual or The govt may not reduce the adult population to only what is fit for children. (In dissent) Test for less restrictive: An alternative is less restrictive only if it will work less 1st harm than the statute itself, while, at the same time, similarly furthering the “compelling” interest that prompted Congress to enact the statute. Cable Television Denver Area Educational Telecomm. Consortium Inc. v.FCC, 1250 U.S. v Playboy Entertainment Group, 1252 Commercial Speech VA St Brd of RX v. VA Citizens Cnsmr Cncl Inc., 1253 Bolger v. Youngs Drug Products Corp., 1258 Centarl Hudson Gas & Elect. Corp. v. Pub. Serv. Commn. NY, 1260 excretory activities or organs in patently offensive manner. Appellee adult entertainment company challenged the Telecommunications Act of 1996. Commercial speech is expression that proposes commercial transactions. Case deals with a state law making it State may not completely suppress the illegal for pharmacist to advertise dissemination of concededly truthful prescription drug prices. information about an entirely lawful activity, fearful of that information‟s effect upon disseminators and its recipients. A company that sought to mail Mailings constitute commercial speech unsolicited mailings to the public based despite the fact that they contain on three types of material; Drug store discussions of public issues like venereal flyers that included prophylactics; Flyers disease and family planning. exclusively promoting prophylactics; Information pamphlets promoting prophylactics. Case deals with a NY ban on The party seeking to uphold a restriction promotional advertisement by an on commercial speech carries the burden electrical company. of justifying it. No line between publicly interesting or important commercial advertising and the opposite kind could ever be drawn. Board of Trustees of the State Univervisty of NY v. Fox, 1262 A State regulation prohibited commercial solicitations on state university campuses. Advertising that Inherently Risks Deception Friedman v. Rogers, 1265 The court upheld a TX law that prohibits the practice of optometry under a trade name. Ohralick v Ohio State Bar Assoc., 1267 Attorney solicited an auto accident victim in her hospital room. In re primus Four part Central Hudson Formula: Court Test for Commercial Speech (Govt has to meet all 4 prongs.) 1. Does the speech advertise illegal activities of constitute false or deceptive advertisement? 2. Is the govt restriction justified by a substantial (not highest level) govt. interest? 3. Does the law directly advance the govt. interest? 4. Is the regulation of speech no more extensive than necessary to achieve the goal (reasonable)? (see change below) Changes step 4 of Central Hudson: Govt regulation of commercial speech need not use the least restrictive alternative. ACLU offered to represent wronged women for free. Regulating Commercial Speech to Achieve Other Goals Linmark Associates Inc. v. Township of The court struck down a town ordinance prohibited the posting of for sale and sold signs to stem what the town perceives as the flight Willingboro, 1269 of white homeowners from a racially integrated community. 44 Liquormart Inc. v. RI, 1271 The court struck down a RI statutory The state bears the burden of showing not (Liquor) prohibition against advertisements that merely that its regulation will advance its provide the public information about interest, but also that it will do so to a retail prices of alcoholic products. material degree. Commercial speech which inherently can lead to deception deserves less 1st A protection. The state may prohibit attorney in person The state has a compelling interest in preventing those aspects of solicitation that involve solicitation of prospective clients for fraud, undue influence, intimidation, overreaching, and other forms of solicitation. profit. Solicitations are protected when the services are offered free of charge. The 1st A directs us to be especially skeptical of regulations that seek to keep people in the dark for what the govt perceives to be their own good. Lorillard Tobacco Co. v. Reilly, 1274 (Tobacco) Posadas de Puerto Rico Associates v Tourism Co., 1281 (Gambling) Reputation, privacy, & publicity Defamation NY Times v. Sullivan, 1284 The court struck down a MA law bans the use of advertising for tobacco products within 1000 ft of a school or playground. The court upheld a Puerto Rico law that prohibited advertising by casino gambling establishments. (Group Defamation SI) The court overturned a slander suit from an Alabama court which awarded substantial damages over an article which contained reporting inaccuracies but the article was in good faith and substantially true. There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification. Rosenblatt v. Baer, 1287 Plaintiff was a fired supervisor of a county-owned ski resort. Wrestling coach was publicly accused of lying under oath. He sued for defamation. John Birch Soc. published false accusations about a private attorney held not to be a public figure. Milkovich v. Loraine Journal Co. 1288 Gertz v. Welch, 1290 Dun & Bradstreet Inc. v. Greenmoss Builders Inc., 1296 IIED Hustler Magazine v. Falwell, 1299 PDPF Cox Broadcasting Corp. v. Cohn, 1301 Business owner reported to five companies as having filed for bankruptcy. Company later retracts. (Fighting words) (Intimidation) Cartoon in Hustler portrays Falwell and mother as drunks who fucked one another in an outhouse. The cartoon was labeled as parody on its face and in the TOC. (Freedom of the Press) Father sues for deceased 17 year old sexual assault victim daughter whose name was published after being obtained from a public court record despite a state (Freedom of the Press SI) (Fighting words/Intimidation SI) (Racist Speech) the P must be a public official or running for public office; Policy: Debate on public issues should be the P must prove his or her case with clear and convincing evidence; practical effect is uninhibited, robust, and wide open, and appellate judges may use de novo review-make sure the P proved the case. that it may well include vehement, the P must prove falsity of the statement; caustic, and sometimes unpleasantly sharp attacks on govt. and public burden not on D officials. difficulty in separating fact from opinion the P must prove actual malice. Actual malice: the D subjectively knew the statement was false or acted with reckless disregard of the truth. State of mind with respect to likelihood that the report was true. Public officials are those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of govt affairs. Labeling a statement as opinion is not Whether statements makes assertion of fact. sufficient, by itself, to preclude defamation liability. To be a public figure, the P must have voluntarily thrust himself into a public issue or engaged the public in an attempt to influence the outcome of a public issue. States may choose their own standard as long as they do not impose liability w/o fault. States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. For punitive damages, the state must meet the New York Times standard. Actual malice is not necessary to receive Public person test: A person must take punitive damages absent a showing of voluntary, affirmative steps to thrust himself actual malice. into the limelight. Public figures and public officials may not recover the tort of IIED by reason of publication without a showing that the publication contains a false statement of fact which was made with “actual malice.” A standard is necessary to give adequate “breathing space” the freedoms protected by the 1st A. (Right to be let alone) The 1st and 14th A will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. The freedom of the press to publish that info appears to us to be of critical importance to our type of govt in which the citizenry is the final judge of the law prohibiting publishing victims of such crimes names. Florida Star v. B.J.F., 1303 Paper reports the name of a sexual assault victim obtained by a reporter when the arrest report was placed in the police dept. press room. When may the govt. regulate communicative conduct? Spence v. Washington, 1315 Court overturned conviction of a P who taped a peace sign to an American flag after the Kent St. massacre. US v. O'Brien, 1316 Court upheld the conviction of D who burned his draft card. proper conduct of public business. Where a newspaper publishes truthful information which it has lawfully obtained, punishment may only be imposed, if at all, when there is a narrowly tailored statute related to a state interest of the highest order. (Strict Scrutiny) (Look for in all speech) Test of whether conduct is speech: An intent to convey a particularized message. A great likelihood that the message will be understood by those receiving it. Test of whether a constitutional govt regulation is sufficiently justified: It furthers an important or substantial govt interest The govt interest is unrelated to the suppression of free expression. The incidental restriction on alledged 1st A freedoms is no greater than is essential to the furtherance of that interest. Determine whether D‟s burning of the flag constituted expressive conduct. If expressive, is State‟s reg. is related to the suppression of free expression. If state interest is not related to suppression of expression, O’Brien test applies. If state interest is to suppress expression, strict scrutiny. “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished symbol represents.” The public has an overarching public interest, secured by the C, in the dissemination of the truth. When speech and non-speech elements are combined in the same course of conduct, a sufficiently important govt interest in regulating the non-speech element can justify incidental limitations on 1st A freedoms. TX v. Johnson, 1320 The court overturned the conviction of a D who burned a flag during a political protest in Dallas, TX in violation of state law making it a crime to desecrate a venerated object. (Freedom of Association SI) The court held a city street meeting and public assembly ordinance unC. The court overturned the convictions of 3 Ds for distributing literature in the street. What govt. property and what circumstances? Perry Educ. Assn. v. Perry Local Court held that rival teacher‟s union Educator's Assn., 1346 does not have access rights to internal mail boxes. What places are available for speech? Hague v. Comm. for Industrial Org., 1343 Schnieder v. NJ, 1344 The privilege of a citizen of the US to use the streets and parks for communication of views on national questions may be regulated in the interest of all. A municipality may enact regulations in the interest of the public safety, health, welfare, or convenience, but they may not abridge the individual liberties secured by the C to those who wish to speak, write, print, or circulate information or opinion. Public Forum Limited Public Forum Public Forum-In places which by long A second category consists of public tradition or by government fiat have been property which the State has opened for use devoted to assembly and debate, the rights by the public as a place for expressive of the State to limit expressive activity are activity. sharply circumscribed. The Constitution forbids a State to At one end of the spectrum are enforce certain exclusions from a streets and parks which "have forum generally open to the public immemorially been held in trust even if it was not required to create for the use of the public and, time the forum in the first place. out of mind, have been used for Although a State is not required to purposes of assembly, indefinitely retain the open communicating thoughts between Non-public Forum Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." In addition to time, place, and manner regulations, the State Police Dept. of the City of Chicago v. Mosley, 1348 Post Office employee pickets HS for discrim. citizens, and discussing public character of the facility, as long as it questions." does so it is bound by the same standards as apply in a traditional In these quintessential public public forum. forums, the government may not prohibit all communicative Reasonable time, place, and manner activity. regulations are permissible, and a content-based prohibition must be For the State to enforce a narrowly drawn to effectuate a content-based exclusion it must compelling state interest. show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. The 1st A means that govt. has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Once a forum is opened up to assembly or speaking by some groups, govt. may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. As we have stated on several occasions, [the] State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. To permit the continued building of our politics and culture, and to assure selffulfillment for each individual, our people are guaranteed the right to express any though, free from govt. censorship. Hill v. CO, 1351 Grayned v. Rockford, 1356 The Court upheld a CO statute making it unlawful, within 100 feet of the entrance to any health care facility, for any person to "knowingly approach" within 8 feet of another person, without that person's consent, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person. The Court upheld a city ordinance that prohibited any person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, to make any noise or diversion which disturbs or tends to disturb the peace of good order was The protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience can‟t avoid it. In determining whether a statute is narrowly tailored, the place to which the regulations apply must be taken into account in determining whether the restrictions burden more speech than necessary. The most comprehensive of right and the right most valued by civilized men is the right to be let alone. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Brown v. Louisiana, Licensing and Permit Systems Cox v NH, 1357 Lowell v. Griffin, 1357 Ward v. Rock Against Racism, 1358 upheld by the SC. The court reversed the conviction of a The 1st A protects the right in a peaceful and orderly manner to protest by silent and reproachful presence, in a place where the group African Americans who protestant has every right to be, the unconstitutional segregation of public facilities. conducted a sit-in in a public library. SC stressed that it was a silent protest. The govt. can require a license for speech in public forums only if there is… an important reason for licensing there are clear criteria leaving almost no discretion to the licensing authority and there are procedural safeguards o such as a requirement for prompt determination of license requests and o judicial review of license denials The SC upheld an ordinance that Permit systems that leave significant required that those wishing to hold a discretion to the licensing authority are parade or demonstration obtain a permit declared unconstitutional. and that allowed a permit to be denied only if the area already was in use by another govt. The court declared unC a city‟s The govt may not require a permit fee for ordinance that prohibited the distribution demonstrations if govt officials have of leaflets, literature, or advertising discretion in setting the amount of the without the written permission of the charge. City Manager. The Supreme Court upheld a guideline A regulation of the time, place, and TPM Narrowly tailored test: A statute is requiring sponsors of park bandshell manner of protected speech must be narrowly tailored so long as the regulation concerts to use sound-amplification narrowly tailored to serve the govt‟s promotes a substantial govt interest that equipment and sound technician legitimate, content-neutral interests but would be achieved less effectively absent the provided by city held valid under First that it need not be the least restrictive or regulation. Amendment as reasonable regulation of least intrusive means of doing so. place and manner of speech. The Court held that a university that allowed student groups to use school buildings could not exclude religious student group from access. A school excluded a group from using its property after school for religious activities including prayer and bible study. P was arrested for “trespass with a malicious and mischievous intent” when he demonstrated at the local jail against the arrest of protesters the day before. The Sheriff tried to get them to leave before resorting to arresting the P and other individuals. A city sold poster advertising space on If a public University opens it property to students groups, it cannot exclude religious groups. The State may reserve a limited public forum for certain groups or the discussion of certain topics. The State‟s power to restrict speech must not discriminate against speech on the basis of viewpoint and the restriction must be reasonable in light of the purpose served by the forum. All the traditional rules for public forums exist that are employed for limited public forums. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. Limited Public Forums Widmar v Vincent, 1360 Good News Club v Milford Central School, 1360 Non-Public Forums Adderly v Florida, 1361 Lehman v City of Shaker Heights, 1364 The policies and practices governing the its rapid transit vehicles but refused to accept political advertisements. U.S. v Kokinda, 1366 Volunteers for the Nat. Dem. Policy Comm. set-up a table on the sidewalk near the entrance to a post-office in order to distribute political literature and solicit donations in violation of a postal regulation prohibiting soliciting alms and contributions. The Port Authority adopted a regulation forbidding within the terminals the repetitive solicitation of money or distribution of literature and the Krishnas sued claiming the statute violated its religious practice of sankirtan, going into public places to raise money. The court upheld a publicly owned TV network‟s choice to exclude a third party candidate‟s inclusion in a debate that aired on the station. forum must not be arbitrary, capricious, or invidious. Governmental actions are subject to a lower level of scrutiny when the governmental function operating is not the power to regulate or license, as lawmaker, but, rather, as proprietor, to manage its own internal operations. The mere physical characteristics of the property cannot dictate forum analysis. Distinction between solicitation and pamphleteering. Int. Society for Krishna Consciousness, Inc. v Lee, 1369 The govt. does not create a public forum through inaction. The creation of a public is made by intentionally opening a nontraditional forum for public discourse. Court noted that solicitation is different that leafleting. Public broadcasting as a general matter does not lend itself to scrutiny under forum doctrine. Exception: Candidate debates. A traditional public forum is property that has a principal purpose of the free exchange of ideas. Arkansas Ed. TV Commn. v Forbes, 1371 To meet 1st A scrutiny, the exclusion of a speaker from a non-public forum must not be based on the speaker‟s point of view and must otherwise be reasonable in light of the purpose of the property. Speech in Authoritarian Environments Tinker v Des Moines Independent Community School District, 1385 Bethel School District No. 403 v Fraser, 1388 Hazelwood School District v Kuhlmeier, 1390 Respondent school officials suspended petitioner students from public high school because they wore black armbands to school in protest of the Vietnam War. D delivered a nomination speech for a fellow student for student office. During the speech, respondent referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. D used the language against the advice two teachers. D was suspended from school for 2 days. A school-sponsored student newspaper was written and edited by a high school journalism class in Missouri. A principal pulled two articles from the paper based on their content. A student has 1st A free speech rights without a showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board. Educators do not offend the 1st A by exercising editorial control over the style and content of student speech in school sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. 1st A rights of students are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.