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First Amendment
South Texas College of Law Houston
Rhodes, Charles W. "Rocky"

First Amendment Rhodes Fall 2014
1)      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
a)      Regulating speech/expression
i)        Analysis
(1)    Is there an attempt to regulate speech/expression?
(a)    Speech – must be inherently expressive
(i)      Inherently expressive – intent to communicate message likely to be understood
(2)    Is the regulation content based or content neutral?
(a)    Look at text and justification of regulation
(3)    If content based, does it fall under an exception?
(a)    If it does NOT fall under an exception – apply strict scrutiny
(i)      Strict Scrutiny
1.       Elements
a.       Narrowly tailored, and
i.         Least restrictive means or no other means
b.      Serves a compelling governmental purpose
(b)   If it DOES fall under an exception – is there a distinctions within the exception based ideas, message, or viewpoints?
(i)      If yes – apply strict scrutiny
(ii)    If no – apply rational basis
1.       Rational Basis
a.       Elements
i.         Must be rationally related to
ii.       A legitimate government interest
(4)    If content neutral, apply O’Brien/TPM
(a)    Three tests
(i)      Targeting conduct that is only sometimes expressive, and
(ii)    Regulating time, place, and manner of expression
(iii)   Sometimes secondary effects test too
2)      Content-Based Regulations of Speech
a)      The General Rule and Excepted Forms of Unprotected and Less Protected Speech
i)        General Rule – If a statute regulates speech based on its content, apply strict scrutiny in order to preserve 1st amendment protection
(1)    Distinction between Content-Based and Content-Neutral Regulations
(a)    Content based regulation – one that is justified by the impact of the subject-matter of the speech
(b)   Content neutral regulation – does not depend on the subject-matter expressed
(2)    Strict Scrutiny
(a)    Elements
(i)      Narrowly tailored,
(ii)    The least restrictive means or no other means, and
(iii)   Serves a compelling governmental purpose
(3)    Excepted Forms of Unprotected and Less Protected Speech
(a)    Exceptions – historical exceptions to the general rule that receive no protection or less protection from 1st amendment – thus easier for govt. to regulate
(i)      Speech which is of such slight social value as a set to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality
1.       Incitement of illegal activity
2.       Fighting words & threats
3.       Obscenity
4.       Speech integral to criminal conduct and Child Pornography
5.       Fraud, Perjury
(b)   If expression falls under exception, apply Rational Basis
(i)      Elements
1.       Must be rationally related to
2.       A legitimate government interest
(4)    Subcategory prohibition
(a)    General rule
(i)      While a general prohibition on fighting words would be constitutional, punishing only those fighting words based on race, gender, or religion is unconstitutional – as it prohibits the speech on the basis of the subjects the speech addresses
1.       Cannot distinguish within exceptions based on ideas, messages or viewpoints
(b)   Virulence Exception
(i)      A prohibition by subcategory is nonetheless constitutional if it is made entirely on the basis of the very reason that the entire class of speech at issue is proscribable at all
ii)      Incitement of Illegal Activity
(1)    Clear and present danger test
(a)    There must be a specific danger that is identified (foreseeable)
(b)   Does not matter that you couldn’t get it done – as long as you had intent
(c)    Minority view – Threat must be so imminent that there is no time for the marketplace of ideas to prevail
(2)    Modified Clear and Present danger test
(a)    If danger is really large, the imminent element can be lower
(i)      Plurality formula
(ii)    Overthrow of govt. = huge danger
(b)   If you have sufficient size of group and being indoctrinated for action, you can come in and stop them
(3)    Modern test (Brandenburg v. Ohio)
(a)    Activity/Speech must be:
(i)      Directed towards inciting or producing (intent),
(ii)    Imminent lawless action, and (imminent danger)
(iii)   Likely to produce such action (clear/probability)
(b)   Examine whether or not the particular speech is directed to inciting or producing imminent lawless action and is likely to produce such action
(i)      If it meets these, then it is not protected speech and the govt. can regulate it
iii)    F

applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest and where the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
(2)    Test – to determine if material is obscene
(a)    Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
(i)      Jury must look at community standards
1.       Community can be state wide or local – does not need to be specified to jury
2.       Juries must use their own communities
(b)   Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(i)      Also viewed under a community standards
(ii)    No “unbridled discretion” to determine what is patently offensive
1.       Only material that displays “hard core sexual conduct” is prohibited
(c)    Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
(i)      Nationwide standard on value of work
(3)    Possession of Obscene materials
(a)    First Amendment prohibits making private possession of obscene materials a crime
(i)      Right to receive information and to personal privacy are fundamental to a free society
(ii)    Distinguished from the production and distribution of such materials
1.       The production and distribution of such materials could be regulated by the states
(4)    Obscene materials in Public
(a)    Obscene films do not acquire constitutional protection simply because they were exhibited for consenting adults only
(i)      Conduct involving consenting adults was not always beyond the scope of governmental regulation
(ii)    “Legitimate state interests at stake in stemming the tide of commercialized obscenity,” including the community's quality of life and public safety