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First Amendment
South Texas College of Law Houston
Kelso, R. Randall

First Amendment

Kelso- Spring 2015


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


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



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



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


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