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First Amendment
South Texas College of Law Houston
Bergin, Kathleen

First Amendment Law

Political speech is high value speech
Speech should be protected unless the harm (breach of the peace, injury) cannot be avoided

Content-based v. Content-neutral speech

Content-based
Government is regulating based on the content of the message
Strict scrutiny applied
Government must have a compelling interest
Narrowly tailed for that interest

Content-neutral regulation of speech
Government is not regulating based on the content of the message
Intermediate-scrutiny applied
Government must have an substantial interest
Substantially related to that interest
Have to be both subject-matter neutral (not disallow discussion of certain topics and
Viewpoint neutral (not apply only to supporters or only to opponents). If fails either
One then the law is deemed content-based.

examples of content-neutral interests:
(free flow of traffic at airports, or state fairs, administrative needs of selective serevice,
preventing fraud, curtailing littering, preserving peach and privacy in residential
neighborhoods, fighting corruption, prostitution, organized crimes, etc.)

If content-based it doesn’t matter whether it’s a Public or Non-Public forum (strict scrutiny)
1) There must be a compelling state interest
2) and must be narrowly tailed for that interest.

Overbroad/Vagueness
Vagueness: doctrine whereby statutes are void if they are so vague that a reasonable person would not
understand what behavior it prohibits. Any vague law violates due process even if it’s unrelated to speech.
It should be noted that vagueness protects speech that is otherwise unprotected.
Overbroad: in addition to proscribing activities which may be constitutionally forbidden, it also sweeps
within its coverage speech or conduct which is protected by guarantees of free speech or free association.
If a law is over-restrictive, but unlikely to be applied often, then courts will not declare it wholly
unconstitutional, but will evaluate its legality as applied, on a case by case basis.

Public Forums (streets, parks, sidewalks)
Public forums are forums that have traditionally been open to the public for expression
“Intent, policy, and practice” are controlling when trying to figure out what is and isn’t a
public forum. Is it intended to be a public forum, what is the policy and practice behind it?
May apply the time, place and manner restriction
meaning the government may seek to restrict the time place and manner of
speech on public properties, usually to minimize distruption exp: laws against
nighttime demonstrations, banning public display of weapons, etc.

Time, place manner restrictions must be
1) content neutral
2) serve substantial government interest
3) and narrowly-tailored for that interest and (does not have to be least restrictive means)
4) leave ample alternative channels of communication

if require permits/licenses for speech in public forums permissible i

Incitement to riot
Brandenburg Test
New 3-prong test enunciated (fact specific inquiry)
1 Imminent lawless action
2 Intended to incite such action (not doctrine)
3 Likely to result in such action

Fighting words (Always check to see if law is vague or broad)
1 Words that in and of themselves inflict injury or
2 Words that incite an immediate breach of the peace
3 Because there is no societal value from protecting this speech
4 Offensive if men of common knowledge would understand to be words likely to cause an average addressee to fight
5 You must be addressing one person – provoking a crowd is not enough
6 Not concerned with someone’s feelings concerned with their reaction
7 Balances the value of the speech and an interest in protecting the speech
8 Determines whether the words belong in a low value category
9 Even unprotected speech such as fighting words may not be subject to content-based/viewpoint based regulation.
Once in the low value category, there is no balancing—they can be proscribed
Police officer exception: much less likely to incite an immediate breach of the peace

Privacy interests v. Content based restrictions