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

First Amendment: Ball, Fall 2017
 
Part 1: Free Speech
 
Freedom of Speech – General Overview
 
Content-Based v. Content-Neutral: Courts distinguish between “content-based” and “content-neutral” regulations on expression.
Content-Based: If the government action is “content-based,” the action will generally be subject to strict scrutiny, and the action will usually be struck down.
Content-Neutral: On the other hand, if the government action is “content-neutral,” the government’s action is subject to an easier-to-satisfy test, and will usually be upheld.
Classifying: A governmental action that burdens expression is “content-based” if the government is aiming at the “communicative impact” of the expression. By contrast, if the government is aiming at something other than the communicative impact, the action is “content-neutral,” even if it has the effect of burdening expression.
 
Analysis of Content-Based Government Action: Where a government action impairing expression is “content-based,” here’s how courts analyze it:
Unprotected Category: If the speech falls into certain pre-defined unprotected categories, then the government can more or less completely ban the expression.
Listing: The main “unprotected” categories are:
(1) Obscenity;
(2) Fraudulent Misrepresentation;
(3) Defamation;
(4) Advocacy of Imminent Lawless Behavior; and
(5) “Fighting Words.”
 
Protected Category: All expression not falling into one of these five categories is “protected.” If expression is protected, then any government ban or restriction on it based on its content is presumed to be unconstitutional.
The Courts subject any such regulation to strict scrutiny – the regulation will only be sustained if it:
(1) serves a compelling government interest; and
(2) is “necessary,”; i.e., drawn as narrowly as possible to achieve that objective.
 
Analyzing Content-Neutral Regulations: If the government restriction is content-neutral, then here is how the Court analyzes it:
Three Part Test: The government must satisfy a three-part test before the regulation will be sustained, if the regulation substantially impairs express:
Significant Governmental Interest: The regulation must serve a significant governmental interest;
Narrowly Tailored: The regulation must be narrowly tailored to serve that governmental interest; and
Alternative Channels: The state must “leave open alternative channels” for communicating the information.
 
Overbreadth: A statute is “overbroad” if it bans speech, which could constitutionally be forbidden but also bans speech, which is protected by the First Amendment. Modern courts require the overbreadth be “substantial,” compared with the legitimate applications of the statute in order for a P to prevail (Broadrick v. Oklahoma).
Overbreadth doctrine even lets a litigant prevail if he can show that the statue, applied according to its terms, would violate the First Amendment rights of persons not now before the court.
 
Vagueness: A statute is unconstitutionally vague if the conduct forbidden by it is so unclearly defined that a reasonable person would have to guess at its meaning.
 
Advocacy of Illegal Conduct: The government may ban speech that advocates imminent illegal conduct.
Brandenburg Test: To be bannable, the speech must satisfy two requirements:
The advocacy must be intended to incite or produce “imminent lawless action”; and
The advocacy must in fact be likely to incite or produce that imminent lawless action.
 
Fighting Words: Expression that constitutes “fighting words” can be flatly banned or punished by the state. “Fighting words” are words which are likely to make the person to whom they are addressed commit an act of violence, probably against the speaker.
Limits: But the “fighting words” doctrine is tightly limited.
Example: For instance, the police must control the angry crowd instead of arresting the speaker, if they’ve got the physical ability to do so.
 
Offensive Language: Language that is “offensive” is nonetheless protected by the first amendment. Thus language that is profane, or language that preaches racial or religious hatred, is protected.
 
“Time, Place, and Manner” Regulations: The government frequently tries to regulate the “time, place, and manner” of expression.
Three Part Test: A “time, place and manner” regulation of speech or expressive conduct has to pass the three part test, discussed above, i.e.,
It has to be content-neutral;
It has to be narrowly tailored to serve a significant government interest; and
It must “leave open alternative channels” for communicating the information.
 
Licensing: There are special limits on the government’s rights to require a license or permit before expressive conduct takes place.
No Excess Discretion: Most importantly, the licensing scheme must set forth the grounds for denying the permit narrowly and specifically, so that the discretion of local official is curtailed. 
 
The Public Forum: Speech that takes place in a “public forum” is harder to regulate.
Content-based: If the regulation is content-based, it makes no difference whether the expression is in a public forum: strict scrutiny will be given in any event.
Neutral “Time, Place, and Manner”: If a regulation is content-neutral, then the fact that the speech does or does not take place in a public forum makes a different. Usually, we’re talking about “time, place and manner” restrictions here.
Non-Public Forum: When expression takes place in a non-public forum, the regulation merely has to be rationally related to some legitimate governmental objective, as long as equally effective alternative channels are available.
Public Forum: But where the expression takes place in a public forum, the regulation has to be narrowly drawn to achieve a significant governmental interest. It is still necessary (but not sufficient_ that the government leaves alternative channels available.
Forums:
Public Forums: are (1) streets, (2) sidewalks, and (3) parks. Also, places in which a public government meeting takes place are probably true public forums.
Limited Public Forums: There are also “limited public forums.” “A limited public forum open only for designated purposes,” and that access to such a forum “can be based on subject matter so long as the distinctions drawn are reasonable and viewpoint neutral.”
Non-Public Forums: Other public places are “non-public forums.” Her

. Extended to states through the 14th Amendment in Gitlow v. NY (1925).
2. Speech not protected under the First Amendment
a. Obscenity
b. Fraud
c. Defamation     
 
B. Theories of Freedom of Speech: Why should society have the privilege of protected speech?
The Marketplace of Ideas (Variety of Ideas)
Freedom of speech is crucial in a democracy: Open discussion of candidates is essential for voters to make informed selections in elections; it is through speech that people can influence their government’s choice of policies; public officials are held accountable through criticisms that can pave the way for their replacement.
The more ideas that are expressed, the closer we will get to the right answer.
Best ideas will prevail
Harmful Ideas will be weeded out through discussion.
Persuasion: state can’t prevent individuals from being persuaded
Criticism: Do we really have a free market?
Ex: Political Campaign Funding
1. Political Concept of Free Speech
a. Speech as necessary for the effectiveness of a self-governing society; gov’t can’t control it.
b. Freedom of speech springs from necessities of self-governance, so public speech must be protected absolutely.
i. Problem is the dichotomy is unclear – High v. Low value speech?
ii. Non-political or Low-Value speech may help citizens, too.
1. Individual Liberty
               a. Right to speak is a fundamental element of humanity and freedom
               b. Part of being a human – self-fulfillment and personal autonomy
i. Protected because of its value to the individuals in developing and autonomy
c. Criticism: If you protect everything, you protect nothing – why not protect other things that contribute to personal autonomy as well?
 
C. Conceptual Themes
               1. Political speech v. “low” value speech (ex: false facts, obscenity, commercial speech)
                              a. There is no real, clear dichotomy!
               2. Content-based v. Content-neutral regulations
a. Courts are more skeptical of content-based regulations and even when it comes to content-neutral regulations, there is judicial oversight via scrutiny.
b. Test for content-based: must be a compelling government interest, which is narrowly tailored to serve that interest (STRICT SCRUTINY)
i. Subset: viewpoint-based regulations
ii. But aren’t regulations always content-based? (Obscenity et al.)
c. Test for content-neutral regulations: must be a substantial governmental interest and must be narrowly tailored to that interest and must leave open alternative avenues of communication. (This is more like intermediate scrutiny).