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First Amendment
Rutgers University, Newark School of Law
Ball, Carlos A.

Professor Ball-Fall 2017
I.          Background & Rationales
            A.        Background
1.         1st amendment: protects freedoms of speech, press, religion & assembly from federal interference    
            a.  extended to states through 14th amendment DPC by Gitlow v. NY (1925)
2.         remember that some categories of speech are NOT protected:  obscenity, fraud, defamation
B.        Constitution Protects Free Speech Because:
            1. Shield from repression-historical context
            2. Facilitate+ Protect Public Discourseà Freer Democracy
            3. “Speech for Truth” (AKA “Marketplace of Ideas”
            4. In order to protect personal autonomy (“liberty” subst. due process)
            C.        General Principles
           1) Vagueness Doctrine
           2) Overbreadth Doctrine
           3) Prior Restraint Doctrine
           4) Content-Neutral vs. Content-Based Regulations
           5) High vs. Low Value Speech
            D.        Three Major Rationales
Marketplace Model
Abrams v. US (Holmes dissent)
Applies social Darwinism to ideas:  speech should be protected so that the “best” ideas can win out in the free market
Persuasion principle:  state cannot prevent individuals from being persuaded
Criticisms:  (1) goal is attainment of truth, but says we must keep looking for truth because we can never really know it; (2) it is not really a fair free market and dissent doesn’t have a fair shot; Barron:  protecting the right of expression is not equivalent to providing for it; access to the media (but internet changes this)
Citizen Participant Model
Mieklejohn:  “principle of freedom of speech springs from necessities of self-government, so public speech should be protected absolutely
Bork:  would only protect political speech
Criticisms:  (1) leads to a fixed set of protected speech; (2) non-public or non-political speech may also help citizens participate; (3) who decides what is public or political and what is not
Individual Liberty Model
Brandeis/Mill:  speech has intrinsic value “as an ends and a means”; it is protected because of its value to the individual in developing and being autonomous
Safety valve theory:  a society that does not allow free expression is fragile; freedom of expression is “social cement”
Criticisms:  (1) Bork:  if you protect everything, you protect nothing (too encompassing); (2) other activities contribute to autonomy and development, so why only protect speech
II.        Structure of Speech Regulation:  Content-Based v. Content-Neutral
A.        Content-Based and Content-Neutral Regulation: 
             Distinguishes between when the government undertakes to regulate speech because of message and when it regulates for some other purpose
             1) Content-Basedà Regulation of the speech is based upon the substance of the 
                  message being communicated
             2) Content NeutralàA restriction on the manner in which an expression can be
                 communicated or conveyed
1.  Test for content-based:  must be a compelling government interest and regulation
     must be narrowly tailored to serve that interest (strict scrutiny)
            a.  subset:  viewpoint-based regulations
            b.  there ARE content-based regulations:  obscenity, etc.
2.  Test for content-neutral:  must be a substantial governmental interest and must be narrowly tailored to that interest AND it must leave open alternative avenues of communication (sounds like intermediate review, but is in practice much more deferential)
            a.  similar to O’Brien (see below)
            b. basically the same as TPM Restrictions
III. Prior Restraint
1.        Prior restraint DEF= limitation or prohibition on speech before it is disseminated
            *NYT v. Sullivan Also falls under Prior Restraint
2.         Licensing and the Public Forum Cases
       a.  Lovell v. City of Griffin (1938):  a statute requiring anyone wanting to distribute any kind of literature to get a permit first is invalid on its face; there is no differentiation as to time place manner; it is a prior restraint and the liberty of the press is not confined to newspapers:  pamphlets are important part of free speech history
       b.  note:  here the JW didn’t even apply for permit; generally h have to apply & be rejected to challenge but here they say it is invalid on its face; this is an ordinance not an injunction unlike Walker v. Birmingham
       b.  Cox v. New Hampshire (1941):  statute requiring licensing for parades IS constitutional; SC has never totally prohibited use of licensing for parades or demonstrations, as opposed to leaflets; states have stronger interest in regulating parades and demonstrations than distribution of literature
a.         requiring parade permits is a reasonable content-neutral regulation because of public safety concerns and policing
b.         Statutes can look to the time, place, and manner, which is content-neutral, but statutes CANNOT look to the content of parade/speech.      
      c.   Southeastern Promotions v. Conrad (1975):  Gov. officials turned down application by theater group to put on performance of “Hair” (musical w/ nudity) at municipal owned theater after concluding that possibly obscene musical may not be in best interests of community
            a. If you are going to have a licensing scheme for public facilities you need to have a standard (No standard or procedural safeguards than gov. action will be found unconst.
a.         Three Needed Procedural Safeguards:
             1) Burden of instituting judicial proceedings and proving  
                 material is unprotected must rest on censor
             2) Any restraint prior to judicial review can be imposed
                 only for a specified brief period and only for purpose of
                 imposing status quo
             3) Prompt final judicial determination must be assured
     d.    Forsyth County v. The Nationalist Movement (1992):  held invalid on its face an ordinance requiring applicants for a parade/assembly permit to pay a fee in advance; the ordinance is a prior restraint because it delegates overly broad licensing discretion to a gov’t official
a.         a permit system must NOT be content-based and must be narrowly tailored to serve a significant gov’t interest, and leave open alternatives for communication:  this IS content-based b/c amount of fee depends on content of speech (whether it is more likely to foster hostility, etc.); 1K cap does NOT alleviate this problem
                        b.         cannot give gov’t unbridled discretion
      e.   Schneider v. State (1939):  blanket prohibitions on leafleting are unconstitutional (can’t get around permit cases in this way); interest in preventing littering does not justify blanket prohibition (alternative:  can just punish littering)
IV.  Overbreadth
      1) Overbreadth DEF:  Gov’t cannot achieve a valid purpose by broad means that reach  
          protected as well as unprotected activityà If law is declared to be overbroad it will be 
          unconst. on its face b/c it regulates substantially more speech than permissible
      2) Overbreadth Doctrine
             a) Someone who violates Brandenburg rule could have conviction
                  overturned b/c of Overbreath Doctrine (See Gooding)
             b) EX of Unconst. Overbroad Lawà “No person may expressly advocate
                 criminal conduct”
      3) Standing:  departs from traditional principles b/c one person can invoke the constitutional  
          rights of another
          a) Court carves out 1st Amend. exception for standing where statute can be challenged by litigants bringing up 3rd persons (so as to prevent citizens from losing their 1st Amend. rights)* In other words, litigants can bring up const. arguments

          legal so long as not arbitrary
a) Todayà We never start w/ the presumption that gov. can   
            3. Holmes Dissent: “Nature of the Beast”, as long as not calling for
                clear+present danger than speech must be allowed!
4.         Whitney v. California (1927):  Criminal Syndicalism Case
             D charged under stated act above, which criminalized advocating/abetting the desire to cause unlawful acts of force/violence; specifically D joined a group whose desire was for working class to rise up to overthrow the capitalist state. D did not really make the statements, but her position was more than a mere member in this “communist organization”
            1. Majority: Gives great deference to gov. à Not unconstitutional unless gov. action is arbitrary or unreasonable attempt by gov. to act in the public interest
            2. Standard of Review: Gives great deference to gov.
            3. Brandeis Concurrenceà “Clear and Present Danger”: Fear of serious injury alone cannot justify suppression of free speech and assembly as men feared witches and burnt women. There must be reasonable ground to fear that serious imminent evil will result
  a) Even advocacy of violation, where it falls short of incitement and no indication it would be immediately acted on is protected
  b) The answer is exposing falsehoods/fallacies is not silence, but more speech!
4. Prof. says related to Right of Associationè Mere membership unless violent acts committed is not really criminal!
5.         Brandenburg v. United States (1969):  Clear+Present Danger Standard Still Good Law Today! (Note: Content-Based)
            D was leader of KKK and made speech to members at a PRIVATE farm in Ohio. Court strikes down syndicalism statutes that prohibit advocating violence or other unlawful activity for purposes of political reform; gov’t cannot proscribe advocacy of force or law violation unless it is directed at inciting or producing imminent danger.
1.         Speech Can Be Prohibited If:
            (1) Where such advocacy is directed to inciting or producing 
                  imminent lawless action (SUBJECTIVE STD.*) AND
            (2) Is likely to incite or produce such action (OBJECTIVE STD.)
                           * Subjective Std. à viewing the from a person having the particular mental and physical characteristics of the defendant
   * Objective Std. à viewing the circumstance from the prototypical reasonable person
2.  Was not imminent in this case b/c D was on a farm and NOT publicà Need to have public vs. private distinction b/c these cases deal with an issue of proximity!
                  a) Court says Clear+Present Danger not satisfied (there seems to be a higher standard in this case!)
3.   Douglass Concurrenceà Wants to do away with “Clear and Present Danger Test” b/c he says it is not acceptable in peacetime
                  a) There is a difference btwn. ideas vs. overt acts as gov. can
                       criminalize overt acts but NEVER ideas!
4. NOTEà On public vs. private distinction SCOTUS has been really skeptical of content base distinctions (who can and cannot speak in public under Public Forum Doctrine!