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

 **Congress shall make no law…abridging the freedom of speech
            *trying to interpret this is difficult b/c vague [text not help, structure—first in bill of rights (but accident), history (intent/meaning, concept overtime)—sparse  history (federalists didn’t have a history maybe on purpose, first had no bill of  rights), had a prior restraint, had to have license to print materials, history made     broad on purpose so it would passàMadison said, “simple principles, ratification       little difficulty” [history for religion though]; **decision around       precedent/doctrinal**important here, and national values/purposes behind free       speech [why we protect free speech]**
            **ON TEST, what are purposes behind free speech (wrong answer is comes first  so important)
*Core purposes for free speech/national valuesà
            *necessary for democracy, ability to criticize, political participation
            *market place of ideas, try and convince others what is appropriate             [beliefs/mores]             *promoting individual autonomy—speech helps define who we are and how want             to appear to individuals
**one constant with casesàgovernment’s neutrality with respect to ideas [not that all ideas are the same, but gov has no business to be in position to decide what ideas are good or bad], gov should stay neutral
**test for first amendmentàwhether gov is regulating based on content? **see below
I. Content Based Regulations of Speech
1st Amendmentà       5 freedoms in 1st:
                                                1. freedom of press
2. freedom to exercise religion, can’t establish national religion
                                                3. freedom to peaceably assemble
                                                4. right to petition gov for redress of grievances
                                                5. freedom of speech
            A. 1. Distinction btwn content based and content neutral regulationsà
            *not right to obscenity; and protecting kids from boobs is compelling
            *2 types of scrutiny for regulating speech [there is going to be regulation of            expression]:
1. content based=justifications for regulation are based on the content of the speech and its impact on the listenter; use strict scrutiny (not protect obscenity, fighting words, threats, incitement of illegal activity, or child porn, fraudulent commercial speech)
            **when gov does this it is not neutral anymore
            **strict scrutinyàleast restrictive means to serve a compelling        governmental interest
2. content neutral=not limit speech based on content’s impact on listener, apply intermediate scrutiny [ex, parade marching through residential neighborhood]             **important/substantial gov purpose [not compelling] and    substantial relationship with purpose [not least restrictive]  
**2 considerations to see content or neutral: ***argue both these for test
            a. look at text of regulation [does it say regulate certain content,      does it treat some speech diff than other speech?]             b. what are justifications behind what gov is trying to accomplish    by regulation [if justification is based on content or not, related          w/suppression of particular message? Based on dangerous idea?]  
                        *US v. Playboy, 2000 [Kennedy]àsection 505 of telecom act, problem of                                     signal bleed [kind of see what was going on, or hear what is going on ],                              gov not want signal bleed of sexually oriented material. Cable had to                               ensure no signal bleed OR restrict this program from 2/3 of day [10pm-                                6am]; PB losing subscribers and sues.
                                    *competing interests, gov protect kids
                                                                        PB express ideas, not obscene so has 1st                                                                                 protection
                                    *is this content based?
                                                YES, justificationàto protect children from the message,                                                    based on impact; also unconsenting adults
                                                YES, textàregulation is directed at sexually oriented                                                          material
                                    *strict scrutiny
                                                *was a less restrictive means, target blockingàhome could                                      call and block

formula approachàif danger really high, can have less                            probability [not need same level of immediacy]*don’t have to wait for                          bomb to be there
                        *Frankfurter would have applied reasonableness test, and finish, give gov                          lots of leeway
                        *Jackson said, don’t even use clear and present in this situation; should                              only use during a hot headed speech on the street b/c easier to see affect of              danger then, can’t use here b/c in secret [not same protections if in market                              place of ideas], if subversive don’t have to wait, not need so immediacy
            *it is one thing to have ideas, but another to take actions, and teach with ways to  commit actions, steps and planning is different –like what Jackson was talking             about
                        *this has never been overruled, but lot of questions left open, so look at it                           as open and obvious v. covert
            Bradenburg v. OHàdealt with KKK rally, and some revengance needed to be      taken, filmed on TV, and prosecuted under syndicalism statute
                        *ct said for incitement of illegal activity it has to be directed toward                                   inciting imminent lawless action and likely to produce that action
                        *similar to Abramsàintend immediate lawless action [danger], and likely                          to produce [clear] action
                                    *intent, immediacy, and probability ***have to meet all elements
                                    **more protection for D’s
                        **KKK punished for speech in market place of ideas, not in private
                        **still protected b/c market place