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First Amendment
Elon University School of Law
Gaylord, Scott W.

First Amendment
Fall 2011
First Amendment
Five Freedoms of the 1st Amendment
                – Religion
                – Speech
                – Press
                – Peaceably Assemble
                – Petition the Government for redress of grievances
-Clear & Present Danger Test (requires government action. question of proximity and degree of what the words will incite, how quickly and to what extent):
                                – (Brandenberg) Incitement to violence or to violate the law is unprotected where it is:
                                                – Directed to inciting or producing
                                                – Imminent lawless action, and
                                                – is likely to incite or produce such action
                                – Intent + Imminence + Likelihood
Specific intent (speech directed at a particular outcome. Speaker intends for someone to do something. Knowledge that taking certain actions will have certain consequences and awareness of the consequences) + Imminence (sometime close in time, hours, days, but not weeks. This is important because need to guarantee that this speech is the cause (causal connection). Public safety issues/harm. Speech has to be a cause of that harm) + likelihood (likely that the speech brings about the harm)
Fighting Words
                – Words which, by their very utterance, “inflict injury or incite an immediate breach of peace.”
                – Most ordinances utilize language that is unconstitutionally vague or over-broad.
False Statements of Fact (no constitutional value in false statements of fact. Defamation is outside 1A protection and can regulate it. Truth is complete defense)
                Defamation: “The act of harming the reputation of another by libel or slander.”
                                – Slander = Oral Defamation
                                – Libel = Written Defamation
                4 Categories of Protected Speech:
                                – Public Officials (NYT v. Sullivan)
                                – Public Figures (Curtis Publishing Co. v. Butts)
                                – Private Figure, Matter of Public Concern (Gertz v. Robert Welch, Inc.)
                                – Private Figure, Matter of Private Concern (Dun v. Bradstreet v. Greenmoss Builders)
To defame someone, it has to be “of and concerning” the person. Lies about the govt (and not particular individuals) are fully protected speech. Private Figure/Public Concern: Have to show negligence – reasonable person standard. Was it a reasonable mistake of fact? Should they have known it was false in a given situation? Actual malice for both presumed and punitive damages because since it is public concern, want a free flow/exchange of ideas. Burden of proof: Plaintiff has to prove falsity and negligence by preponderance of the evidence (more likely than not). Standard for actual malice is clear and convincing. Have to show knowledge or reckless disregard.
1.       Is there a statement of fact or only of opinion? (Opinions are protected)
•       Provably false factual connotation is sufficient (and aren’t protected)
2.       Is the plaintiff a public or private figure?
•       Government officials but not low level government employees.
•       “Assumed an influential role in ordering society.”
•       “Achieved pervasive fame or notoriety”—general public figures.
•       “Voluntarily interjected themselves or [been] drawn into a particular public controversy”—limited or involuntary public figures.
3.       Public or private matter?
•       “Anything that might touch on an official’s fitness for office.” (it’s not what you think is important, it’s what others think is important)
•       Anything relevant to any other question of public importance. (D&B held that the speech was not a public concern where (i) “soley in the individual interest of the speaker and its specific business audience” and (ii) “made available to only five subscribers.”)
4.       What is the applicable mens rea?
•       Actual malice—knowledge or reckless disregard
1.       Publishing while “in fact entertaining serious doubt as to the truth of the publication.”
2.       No duty to investigate but no “purposeful avoidance of the truth.”
•       Negligence.
•       Strict liability if matter of private concern?
5.       Do not forget falsehood.
•       Necessary element—if not a false statement of fact, then no recovery.
•       Court has not resolved the proper burden of proof.
6.       Explain available remedies and standard for each.
•       Compensatory.
•       Presumed.
•       Punitive.
New York Times Standard
1.       Points to remember:
a.       Focus is on the motive of speaker (not an objective test, it is a subjective test. Worried about mental state of this particular speaker. What did he know regarding knowledge of falsity. Look at individual to establish actual malice)
b.       Generally no duty to check accuracy of speech. (unless you are put on notice there is an error. Even if the info could be found in your own files)
c.        Freedom of press imposes same test as freedom of speech.
2.       What other standard does NYT establish?
a.       Court provides absolute protection for falsehoods about the government without regard to mental state. (broad protection for comments about govt. 1A protects political speech. If lies about govt, doesn’t matter if not attributable to certain individual. If about individual, may be actionable)
Obscenity (unprotected speech. Want to protect consumers, women, unwilling 3rd parties from exposure)
                The Miller Test: (Penis In, Penis Out)
                                1. Prurient Interest:
                                                – the average person
                                                – applying contemporary community standards would find that the work
                                                – taken as a whole
                                                – appeals to the prurient interest and;
                                                                -prurient interest = “shameful morbid interest in sex”
2. Patently Offensive: (ex. “Patently offensive representation or discriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”)
                                                – the work depicts or describes
                                                – in a patently offensive way
                                                – under contemporary community standards (local community determines what obscene)
– sexual conduct specifically defined by the applicable state law (have to give some type of characterization or list of things that count) and;
                                3. Serious Value: (LAPS)
                                                – the work taken as a whole
                                                – lacks serious
                                                – literary, artistic, political, or scientific value
                                                                – reasonable person standard
                                                                – objective national standard
                                                                – can be proven by facts and other evidence
Mens Rea Requirement:
                                – Defendant can only be punished if he knows (or possibly, has reason to know) the                                                           contents of the material.
                                – Mistake of law no defense
                What actions can govt. take to regulate obscenity?
– Government can prohibit the sale, distribution, transportation, and exhibition of obscene materials (if not at home yet, can punish)
– Government may not punish the private possession of obscene material in one’s home.
– Government can prohibit people from selling to customers whom they know (or perhaps should know) are minors.
Child Pornography
                General Rule        
                                – Speech is unprotected if:
                                                – It “visually depicts” children below the age of majority. (VD)
                                                – Performing sexual acts or lewdly exhibiting their genitals.
                                – Miller Test does not apply.
– Defendant  may be punished only if he knows (or, possibly, has reason to know) that the material that he possessed or distributed involved an underage performer. Private possession of child porn may be outlawed. (Morphed images of child faces on bodies is not child porn. Could be false statement of fact (unless disclaimer saying faces aren’t real) or obscenity since average person in community would not find images appropriate).
Vagueness and Over-breadth
                – General Rule:
                                – A law is unconstitutionally vague if a reasonable person cannot tell what speech is                                                          prohibited and what speech is permitted.
                                                – Speech restriction must provide an ascertainable “standard of conduct”
                                                – If govt. is acting in a special capacity, then vagueness rules are not as stringent
                                – Predicated on due process concerns
                Grayned factors:
                                – Lack of fair warning to the speaker
                                – Threat of arbitrary or discriminatory enforcement
                                – Risk that people will “steer far wider of the unlawful zone”
                Way to approach on exam: 1) ID vague terms; 2) Concrete Examples; 3) Grayned factor
                -General Rule:
                                – A law is unconstitutionally overbroad if it regulates substantially more speech than the                                   1st Amendment allows to be regulated.
                                – A person to whom the law constitutionally may be applied can argue that it is                                                                   unconstitutional as applied to others
                – General Principles
                                – The over-breadth must be substantial.
                                – The over-breadth must relate to noncommercial speech.
                – Common considerations for vagueness and over-breadth:
                                – The court focuses on the law as construed by the courts and not on the law as written.
                                – Courts can apply clarifying (or limiting) constructions that can salvage laws that                                                              otherwise would be too vague of overbroad as written.
                -Interrelationship between vagueness and over-breadth:
                                – A law’s over-breadth actually m

does not implicate the interest.
                                                                C. Least Restrictive Alternative
                                                                – Will less restrictive means serve the interest essentially well as                                                                                                the proposed law. Could Restrict unprotected conduct rather than speech.
D. Not underinclusive (of the interest or of the law) (ex. law bans only anti-abortion picketing, state said interest is preventing obstruction of sidewalks, underinclusive law. If state said interest was to prevent obstruction of sidewalks from anti-abortion picketers, then the interest is underinclusive.)
– Consider whether the law fails to restrict a significant amount of speech that harms the government interest to roughly the same extent as restricted speech.
– If so, it suggests that the alleged interest is not the government’s actual interest; rather, the government simply is trying to favor one form of speech over another.
2. To serve a compelling government interest (Ex. combating terrorism; protecting the physical and psychosocial well-being of minors; protecting voters from confusion, intimidation, and undue influence at polling places; preventing quid pro quo corruption)
                                                                A. Cannot privilege speech on a particular subject (only allow labor picketing)
                                                                B. Cannot, without more, restrict speech to avoid offense or restrict bad ideas.   
– Government cannot restrict expression of an idea simply because society finds the idea itself offensive or disagreeable. (ex. F the draft, won’t ban it, avert your eyes)
C. Under- inclusiveness of a law (or interest itself) suggests that the government lacked a compelling interest.
                                                                                – If the law does not reach all the speech that implicate the                                                                                                       alleged interest, then govt. does not take that interest to be all                                                                                                  that important.
– Govt cannot claim compelling interest in fighting one ill while ignoring others that are virtually indistinguishable
Overview of analysis:
Identify the government’s possible interests, and for each such interest consider whether:
That interest is compelling.
That interest is substantially advanced by the regulation.
The regulation is overinclusive.
The regulation is the least restrictive alternative.
The regulation is underinclusive.
Content Neutral Speech Restriction
                -General Rule:
– Government regulations that are unrelated to the content of the speech are subject to a lower level of judicial scrutiny, even though speech may be incidentally burdened.
                Tips for identifying Content Neutral Speech Restrictions:
– Look to see if the speech restriction applies to all speech or only certain kinds of speech (if precludes all speech, more likely content neutral unless real intent is to go after content and it is a sham)
– Content Neutral Speech Restrictions are subject only to an intermediate standard of review:
                                                – Regulation must be closely tailored
                                                – To serve a “substantial” or significant interest”
Time, Place and Manner Restrictions
                – General Rule:
                                – Restrictions on the time, place, or manner of speech are permissible if they:
                                                A. Are content-neutral, i.e., are justified without reference to the content of the                                                                    regulated speech;
– A time, place, or manner restriction that is content based still must pass strict scrutiny, OR
                                                                – Fall within an exception from protection
                                                B. Serve a substantial govt. interest;
– Certain speech activities may have side effects – noise, traffic, intrusion on privacy,
– That are not related to the communicative impact of the speech
                                                                – Fairly easy to meet this prong