First Amendment
Kelso- Spring 2015
PART IX: STANDARD FREE SPEECH DOCTRINE
Overview of Freedom of Speech and of the Press [ch. 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 of a redress of grievances
Theories for why the right to free speech is important
The marketplace of ideas
i. Exchange of different ideas
ii. Primary justification for protecting the right to free speech
iii. Can only get to the truth if we can discount falsity and can only do that if ideas are exchanged freely in the marketplace
iv. Must be accessible to be an effective market
Representative democracy
i. Free flow of ideas provides for counter information, which allows people to hold lawmakers accountable
ii. Allowing all ideas to get out there may also help stabilize society b/c it prevents uprising/revolt
Autonomy – self-fulfillment
i. 1st should be read broadly to protect everyone’s idea of what might be art, politics, etc
1. Something that is art to one person may be political or offensive to others
Government distrust
i. 1st amendment presumes the gov’t does not have the people’s best interests in mind and that there is an inherent bias motivating gov’t decisions
II. Intro to 1st Amendment and Constitutional Interpretation
a. All 1st amendment rights = fundamental rights & equally applicable to state and federal government
b. 1st Amendment (freedom of speech, the press)
i. Different levels of scrutiny depending on:
1. Location:
a. Public forum –or-
b. Non public forum
2. Regulation is:
a. Content based
i. Viewpoint
ii. Subject matter
b. Content neutral
i. Secondary effects
ii. Time, places, or manner of speech
3. Public forum
a. Content based regulations = strict scrutiny
b. Content neutral regulations = intermediate review
4. Non-Public forum
a. Viewpoint = strict scrutiny
b. Subject matter = rational review
c. Content neutral = rational review
c. 1st Amendment (right to assemble and petition the government for a redress of grievances)
d. 1st Amendment (religion)
e. Constitutional Interpretation
III. Intro to Freedom of Speech & of the Press
a. Original Natural Law Era: 1789-1873
i. Alien and Sedition Acts of 1798 criminalized certain forms of politically partisan speech
1. The truth was a defense under this act
ii. The act was repealed in 1800 when Jefferson was elected
b. Formalist Era: 1873-1937
c. Holmesian Era: 1937-1954
d. Instrumentalist Era: 1954-1986
e. Policies Affecting Free Speech Doctrine
i. 6 reasons supporting freedom of speech
1. Commission on Industrial Relations’ view that radical action is best restrained by granting free speech (Formalist)
2. Marketplace of ideas (Formalist)
3. Advancement of political democracy (Formalist)
4. The 1st amendment serves not only the needs of the polity but also those of the human spirit- a spirit that demands self-expression and self-realization (J. Marshall)
5. The constitution is a bold commitment by people to the ideal of libertarian dignity protected through law… as augmented by the Bill of Rights and the Civil War Amendments, this text is a sparkling vision of the supremacy of the human dignity of every individual (J. Brennan)
6. Freedom of speech promotes tolerance of others and thus helps to shape the intellectual character of society (Prof. Bollinger 1986)
f. Modern Era Free Speech Intro: 1986-Today
i. Relatively robust protection of the instrumentalist era, embracing all 6 policy reasons state above
ii. What Standard of Review to Apply?
Question 1
Whether the case involves a governmental regulation of speech?
-If yes, standard 1st Amendment doctrine applies and go to question 2
-If involves either governmental regulation of conduct or governmental spending on speech, standard 1st Amendment doctrine does not apply
Question 2
Whether the speech is regarded a fully protected (e.g. literary, artistic, political, scientific speech, or symbolic speech), or if it is regarded as not fully protected?
-If yes, go to question 3
-Note: symbolic speech is conduct which is not pure speech such as talking, writing, or wearing informative clothing, but is nevertheless intended to be expressive and convey a message. Symbolic speech is given the same protection as regular full protection speech under 1st Amendment free speech doctrine
Question 3
Whether the regulation of speech is content-based or content-neutral, and if content-based, whether the regulation involves viewpoint discrimination (regulation is focused on which side of a topic the individual supports) or subject-matter discrimination (the regulation applies if a topic or subject matter is discussed w/o regard to the person’s views on that subject matter)?
Question 4
Whether the speech being regulated occurs on private property or in a public forum, or in a non-public forum owned by the government?
-government attempts to regulate speech on individual’s private property or on public forums is much more difficult to justify and typically triggers a heightened standard of scrutiny than government regulations on property owned by the gov that is not generally open to the public
iii. Levels of Review for Fully Protected Speech
Public Forum or Private Property
Non-Public Forum Owned by the Government
Viewpoint Discrimination
Content-Based Regulation of Speech
Strict Scrutiny
Strict Scrutiny
Subject Matter Discrimination
Content-Based Regulation of Speech
Strict Scrutiny
Rational Review
Content-Neutral Regulation of Speech
Intermediate Review
Rational Review
1.
IV. Freedom of Speech and Strict Scrutiny
a. Simon & Schuster v. Members of NY State Crime Victims Board (1991)
i. To justify content-based regulation of speech, the state must show that its regulation is necessary to serve a compelling state interest, and is narrowly drawn to achieve that end
V. The “Plus Six” Standards of Increased Scruntiny
Heightened Rational Review (Reasonableness Balancing of Means and Ends, Not Separate Elements
Second-Order
Reasonableness
Review: Burden on challenger to prove unconstitutionality
Legitimate Ends “Not Unreasonable” Given Means
Non-Public Forum: Subject Matter or Content Neutral Regs. Of Speech
Government Grants of Subsidies
Defamation and other Related Torts
Less than Substantial Burdens on Freedom of Assembly/Association
(No substantial deference to government)
(No substantial deference to government)
(no substantial deference to government)
[Balance government interests and availability of less burdensome alternatives v. burden on persons]
Third Order Reasonableness Review
Same as Second-Order Review, except the burden shifts to the government to justify its action. Burden remains on government for all higher review levels
Government Employees on Matters of Public Concern: Pickering
Intermediate Review Standards (3 Requirements are Separate Elements to Meet)
Intermediate Review
Substantial/
Important
Substantially Related
Not Substantially More Burdensome
Than Necessary
Public Forum: Content-Neutral Regulations of Speech
Content-Based Regulations of Broadcast TV and Radio: Red Lion v. FCC
Relationship to Burdens
“Base” Minimum Rational Review (Three Requirements are Separate Elements to Meet)
Minimum Rational Review: Burden on challenger to prove unconstitutionality
Legitimate (Substantial deference to government)
Rational (Substantial deference to government)
Not Irrational (Substantial deference to government)
If no first Amendment Review*, then likely only Carolene Products review under Due Process, or Railway Express review under Equal Protections Clause Analysis
[Does Government have “rational basis for action?]
*Government funding own speech or enlisting private parties to convey government message, or non-viewpoint discrimination involving advocacy of illegal conduct, true threats, fighting words, obscenity, or child pornography
1.
iii. Hazelwood School District v. Kuhlmeier (1988)
1. Rule:
a. Under the First Amendment, educators may exercise editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.
Journalism class where intended to publish a newspaper but principal cut out two articles dealing with teen pregnancy and the impact of divorce on students at the school
Court initially discuss the forum b/c if it is a public forum then the students will be given the greatest amount of latitude
Court determined that it was not a public forum because although it is a newspaper, the school reserved the forum for its intended purpose as a supervised learning experience for journalism students
Because it was not a public forum school officials could impose reasonable restrictions on the speech of students and teachers
Court here only wants to know if the restriction was reasonably related to the legitimate pedagogical concern and the teaching mission
Asks this question b/c it differentiates this newspaper from any other newspaper
A school need not tolerate student speech that is inconsistent with its basic educational mission even though the government could not censor similar speech outside the school
Court notes that first amendment is protected in the context of the school’s curricular mission
So the ones protected are only those that do not interfere with legitimate pedagogical concerns
The standard in Tinker does not need to be the same standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression
· The tests
§ Identify whether students are speaking as students or as part of a production of the school (ie, school sponsored speech)
· School-sponsored event
· School sponsored activities must be reasonably related to a pedagogical/educational concern
· If non school sponsored event àTinker Test:
· Balance school’s interest in efficient operation and the student’s right toe express themselves in light of lack of disturbances, interference with discipline, education, or other rights