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Constitutional Law I
University of Dayton School of Law
Green, David

Constitutional Law- First Amendment: Freedom of Expression

A. Introduction
1. Historical Background
2. Why should freedom of speech be a fundamental right?
a. Self-Governance- freedom to criticize Gov’t and officers is central in meaning of 1st
b. Discovering Truth- John Stuart Mill- free speech is essential for discovery of truth
c. Advancing Autonomy- all citizens have right of personhood and autonomy
d. Promoting Tolerance- protecting unpopular speech is essential act of tolerance.
3. Issues in Free Expression Analysis
a. Any law can be reviewed to see if strict scrutiny (content-based) or intermediate scrutiny (content-neutral) is applicable (content-based).

B. Free Speech Methodology
1. Distinction b/t Content-based and Content-neutral Laws – The Gov’t cannot regulate speech on its content based on:
o Its message, ideas, subject matter, or content.
o Content based restrictions are invalid by presumption.

a. Importance of the Distinction- distinction bet content-based and content-neutral
· Turner Broadcasting v. FCC-
Rule: Fed law requiring cable TV providers to devote some channels to local, edu. broadcasting is content-neutralà subject to intermediate, not strict scrutiny.
Held: Law is not “content-based” (does not attempt to regulate content of shows), it does not merit strict scrutiny. Content-based laws are those that distinguish favored speech from non-favored speech on the basis of ideas or views expressed

b. How is it determined whether law is content-based?-
· Boos v. Berry- Protesters sued b/c not allowed to picket outside foreign embassies with signs critical of those governments.
Rule: Fed statute prohibiting anti-government signs near foreign embassies is a content-based speech regulation, and subject to strict scrutiny.
Held: Because the law is “content-based” the Gov’t needed to show a “compelling interest” as to why the law was necessary. Protecting the feelings of foreign diplomats was not held to be sufficient since our own politicians are not granted the same consideration.

· Simon & Schuster v., NY State Crime Victims Board-
Rule: State law requiring proceeds from criminals’ story to be paid to victims is not narrowly-tailored enough to be constitutional b/c law creates financial disincentives to publish or create works w/particular content,.
Held: State must show that statute serves a “compelling interest” and is narrowly drawn to only limit criminals from profiting. Ct held that statute would prevent anyone who ever committed a crime (regardless of how small) from profiting from any original works.

c. Problems in Applying Distinction b/t Content-B

of even offensive art.

2. Vagueness and Overbreadth- laws can be challenged as facially-unconstitutional on grounds they are unduly vague or overbroad.

a. Vagueness- vague if “reasonable person” can’t tell which speech is allowed and which isn’t allowed.
· Coates v. Cincinnati- ordinance made it crime for more than 3 ppl to assemble on sidewalks.
Rule: State can’t regulate speech & assembly just b/c it might annoy some people.
Held: Unconstitutional broad b/c it subjects right to assemble to a vague standard and “reasonable person” would have to guess at its meaning.

b. Overbreadth- Something that regulates more speech than necessary to meet objective of statute and would apply to someone whose speech is not intended to be restricted.

· Schad v. Borough of Mt Ephraim- coin operated strip joint sued b/c statute banned all would also apply to even non-obscene live entertainment.
Rule: Law can’t restrict people outside scope of banned target group.
Held: Since law banned all live entertainment, not just nude dancing, it was void.