Constitutional law 2
I. Freedom of Speech
a. Rule- It is within the state’s police power to bar some speech for purposes of the general welfare, where the speech advocates and incites to action unlawful takeover of the government.
b. Factors to take into account:
i. There must be an immediacy or imminence requirement.
ii. Look towards the circumstances in question.
iii. There is a presumption in favor of free speech.
iv. Look at the proximity and degree of the danger.
c. Bad Tendency Test- If they had a bad tendency to over-mind the Government, then you are criminally liable and you could not invoke the 1st Amendment.
i. You should only argue this test with conspiracies.
d. Justice Brandeis 3 part test to justify suppression of speech:
i. There must be reasonable ground to fear that serious evil will result if free speech is practiced.
ii. There must be reasonable ground to believe that the danger apprehended is imminent.
iii. There must be reasonable ground to believe that the evil to be prevented is a serious one.
e. Clear and Present Danger Test
i. General Rule- The government is not allowed to restrain free speech because of its content.
ii. Exception- Allows restraint and criminalization of speech
iii. 3 part test:
1. A very serious harm and danger must be articulated
2. Is the danger imminent?
3. Is it beyond advocacy, does it pass the threshold with advocacy and the intent to incite?
a. You must intentionally incite people to engage in the overthrow.
II. Freedom of Association
a. There is no freedom of association guaranteed in the Constitution. It is inferred in the 1st Amendment.
erest and the method the government uses is the least restrictive.
i. Narrowly tailored to a compelling state interest
1. First, it must be justified by a compelling governmental interest.
2. Second, the law or policy must be narrowly tailored to achieve that goal or interest.
3. Finally, the law or policy must be the least restrictive means for achieving that interest.
d. When you make your analysis about locations:
i. You want to distinguish between public and private property
ii. If private, you need to determine if the speech is content based or content neutral.
1. If content neutral, then the time, place and manner test will be used
2. If content based, then strict scrutiny test is used
iii. There are 3 ways to determine public property:
1. Traditional public forum
a. Strict scrutiny applies- must be narrowly drawn to achieve a compelling state interest
b. If it is truly a public forum:
i. Traditionally dedicated to the free exchange of ideas
ii. Does the public have unfettered access to the forum?
c. Sidewalks, public parks, streets
i. Qualification if there is a limited use, then it may be taken out of a traditional public forum
2. Designated public forum
a. Public University meeting place, or where the city counsel meets
b. Strict scrutiny test, but can be limited in scope to what the discussion is
3. Nonpublic forum
a. Airports, post offices, court rooms
Can impose reasonable restrictions on speech as
