First Amendment Outline

First Amendment Bamberger Fall 2016
 
Principle Underlying Values of the FA
 
Individual Self-Fulfillment
Attainment of Truth
Participation in Decision-Making
Balance Between Stability and Change
 
Content Based v. Content Neutral, Overbreadth and Vagueness
 
The law is content neutral, so only an intermediate level of scrutiny is required
If it is content based, you need strict scrutiny
Strict scrutiny: State must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end
 
Turner Broadcasting System Inc. v. Federal Communications Commission
Rule: If a law is either a viewpoint or a subject-matter restriction, it will be found to be content-based and must meet strict scrutiny
Issue: Federal legislation requires cable TV companies to devote portion of channels to local programming à Does this violate first amendment?
Holding: The law is NOT unconstitutional because it doesn’t impose burdens or confer benefits based on CONTENT of the speech
The provision reduces number of channels for which cable programmers can compete, but this is unrelated to content
Dissent: The law diminishes the diversity of ideas, which infringes on first amendment rights
Requirement that government be content-neutral means that the government must also be both viewpoint-neutral and subject-matter-neutral
 
Boos v. Barry
Issue: District of Columbia Code prohibits display of any sign within 500 feet of foreign embassy if that sign tends to bring foreign government into “public odium” or “public disrepute” à Does this violate first amendment?
Petitioners are three individuals who want to carry signs critical of governments of Soviet Union and Nicaragua on public sidewalks within 500 feet of those embassies in Washington D.C.
Holding: The provision is viewpoint-neutral but not content-neutral. The provision violates the first amendment  
The law is content based. Whether individuals may picket depends on what the signs say
The U.S. say that the statute is not content-based because the government itself is not selecting between viewpoints, messages that are permissible are determined by the policies of the foreign government
Provision is not viewpoint-based à it is viewpoint-neutral
BUT it is still content-based
What is the compelling state interest for the strict scrutiny test? Protecting dignity of foreign diplomatic personnel
But this is not enough, dignity standard is too inherently subjective and citizens must be able to tolerate insulting even outrageous speech to provide “adequate breathing space for freedoms of FA”
 
Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board
Issue: Is a state law preventing those accused/convicted of a crime from profiting from the crime by speaking/writing about it unconstitutional? à Any funds derived from description of the crime gets placed in escrow account to compensate crime victims
Holding: It is a content-based statute à strict scrutiny à governmental interest? Compensating victims from fruits of crimeà but the Son of Sam law is not narrowly tailored to advance that objective
 
Williams-Yulee v. Florida Bar
Issue: States are allowed to let voters elect trial/appellate judges at polls. To preserve public confidence in the integrity of judiciaries, many States prohibit judicial candidates from soliciting funds for campaigns. Does the FA permit this restriction on speech?
Facts: Florida, like most other states, prohibits candidates from soliciting funds personally; but they can raise money through committees. Canon 7C(1)
Yulee sent out a letter when she was running for a seat asking for monetary contributions. Florida Bar filed complaint against her
Holding: Yes. A state may restrict speech of a candidate only if restriction is narrowly tailored to serve a compelling interest à in this case it is and the speech restriction withstands strict scrutiny
Yulee argues that the provision’s failure to restrict other speech is equally damaging to judicial integrity; i.e. can still allow judge’s campaign committee to solicit money à but there are no fatal under inclusivity concerns
It bans conduct MOST likely to undermine public confidence
Personal solicitation and judicial committee solicitation implicates different problems. Florida’s choice to allow solicitation by committees does not undermine its decision to ban solicitation by judges. FA is not all or nothing choice
She also argues it’s over inclusive à restricts too much, not narrowly tailored enough
Court disagrees; candidates can write letters, give speeches, etc. Just cannot say “please give me money”
Dissent: Banning candidates from asking for money personally favors some candidates over others à incumbent judges over non-judicial candidates, well-connected over outsiders, etc (Scalia and Thomas)
Not narrowly tailored. Person asked for contribution from may never be in candidate’s court
Kennedy: It’s ironic that FA protections are lessened when candidate’s own speech is at issue. Also ironic that FA is weakened in a case concerning elections, which are about freedom
Overbreadth & Vagueness
 
Overbreadth doctrine: “[A] governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” 
 
Overbreadth is:
The type of challenge one can make to a law  
Usual challenges to Constitutionality of a statute, as applied challenge; “My speech – the speech that the government is trying to restrict – is protected by the first amendment” 
Over breadth permits a “facial” challenge; “The law under which I'm being punished reaches too much speech that clearly is protected and therefore must be struck” 
 
Vagueness  
Doctrinal standard: statute survives vagueness if a reasonable person knows what it means 
 
Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus