2008 OUTLINE
I. Three Methods of analyzing the 1st Amendment:
a. THE BALANCING APPROACH: Government’s concern about protecting a particular interest (like national security or an individual’s reputation) VS. The speaker or the writer’s (and society’s) interest in the expression
i. Courts often refer to the different balancing tests applied in freedom of expression cases as “levels of scrutiny”
1. Strict Scrutiny:
a. Requires the State to show that its regulation is necessary to serve a compelling state interest and is narrowly tailored to achieve that interest.
b. The test requires that the State assert an interest “of compelling importance that is cannot achieve” without the regulation.
c. Applied to most “discriminatory restrictions or prohibitions of speech”
2. Intermediate Scrutiny:
a. Requires that a state regulation be closely related to an important, significant, or substantial state interest
b. Refers to a variety of tests used by the Court to evaluate regulations that affect expression BUT are not targeted at expression, target only “low-value” expression, or do not discriminate among types of expression.
c. Applied to regulations that target conduct but incidentally restrict speech
3. Rational Basis Scrutiny:
a. Statutes and other government actions are valid if they bear a rational relation to a legitimate government purpose
b. Rarely applied when 1st Amendment interests are at stake
ii. Landmark Communications, Inc. v. Virginia (SC 1978) – pp.32
1. Facts: The Virginia Constitution directed that proceedings against judges were to remain confidential. (except the record of any proceeding filed with the Supreme court shall lose its confidential character) The Virginia Pilot published information about a complaint filed against the judge.
2. Issue: Whether the First Amendment permits the criminal punishment of third persons who are strangers to the inquiry, including news media, for divulging or publishing truthful information regarding confidential proceedings.
3. Holding: NO
a. ROL: Where the proceedings of a judicial inquiry are made confidential, the First Amendment does not permit the prosecution of outsiders not involved in the inquiry, including the news media, for divulging truthful information regarding the inquiry.
4. Rationale (Burger): Virginia’s punishment of such publication was unconstitutional.
a. The State’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom (pp.34).
b. Injury to official’s reputation is insufficient to repress speech that would otherwise be free.
competitor.
2. Issue: Whether state law can require newspapers to seek court approval prior to the publication of a juvenile’s name in connection with a crime.
3. Holding: NO
4. Rationale (Burger): Unlike in the Landmark case, there was no compelling state interest that could outweigh infringement on the press’s First Amendment rights.
a. State interest asserted by prosecutor in protecting the anonymity of a juvenile offender could not justify the statute’s imposition of criminal sanctions on the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper.
b. That even if the statute served a state interest of the highest order, it did not achieve its purpose because it did not restrict electronic media or other forms of publications, AND
c. That there was no evidence that criminal penalties were necessary to achieve the purpose.
The General Rule seems to be that if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.
