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First Amendment
University of Illinois School of Law
Lash, Kurt T.

Constitutional Law III – Fall 2013 Kurt Lash
I.            The Roots of Modern First Amendment Doctrine
Gobitis & Barnett
II.            The Structure of Free Speech Claims: Vagueness, Overbreadth, and Prior Restraints
Prior Restraint: Must seek govt permission to speak, no 1st amend defense otherwise.  Usually a temp restraining order, or an Injunction that totally prohibit speech, so bubble zones around abortion clinics are not prior restraints, can express opinions elsewhere and content neutral.
Non Topical Speech: “Temporary prior restraints allowed if there is a prompt opportunity for judicial review of restraint.” (Freedman standards)
Topical Speech:  No prior restraint unless unprotected speech OR it will cause grave and immediate threat.  It, “will result in direct, immediate, and irreparable damage to our Nation or its people” (Stewart), “must inevitably, directly, and immediately cause the occurrence of a kind of event kindred to imperiling the safety of a transport already at sea.”(Brennan)
Reqd Permits of non-commercial canvassing: unCON’l (Watchtower), but trespassing ordinance ok (VA v. Hicks)
Parade Permits:  “Permit conditioned on explicit, content-neutral time, place and manner criteria.”

Vague: “Reasonable person must guess at speech prohibited by the law.”  Does not give individuals fair notice of what is prohibited, and provides too much discretion for law enforcement.  Chills speech.
Overbroad:  “Sweeps in protected and unprotected speech” 
Facially Overbroad: 3rd parties (even if you are guilty of unprotected speech) may bring facial unCON’l challenges to law where there is substantial overbreadth, substantial amount of protected speech is reached in relation to the law’s legitimate scope.
As Applied: Where not a substantial amount of protected speech reached, or you lose the facial challenge, may make as applied challenge that your personal speech is protected.  Court will sever language. 
III.            “Dangerous Advocacy” and the modern approach to speech posing a “Clear and Present Danger (unprotected speech)
Speech many not be punished on the grounds of it’s dangerous tendencies unless it involves:
Brandenburg Test:  “Direct advocacy of imminent lawless activity which is likely to occur.”
State must prove:
1.       the speaker subjectively intended incitement
2.       in context, the words used were likely to produce imminent lawless action
3.       the words used by the speaker objectively encouraged incitement
a.       note: missing a degree of danger element—some scholars have suggested that a degree of danger, a need for serious threat before gov can abridge speech is embedded in this test
IV.            Libel and Tort Law (Privacy, IIED)
Libel / (IIED): False statement which damages reputation
Govt / Public Figures: If expression involves matter of public concern, it is protected unless statement was false and defamatory and made with actual malice (knowledge of or reckless to).
Private Individuals:  If expression involves matter of public concern, it is protected unless statement was false and defamatory and negligently made (punitive damages requires actual malice).
Invasion of Privacy Torts:  No 1st amend protection for the disclosure of truthful private facts highly offensive to reasonable person not of legitimate public concern, tort may proceed.  Where truthful information legally obtained (even if originally obtained illegally) of public concern, protected, innocent publishers can publish, so must past SS for tort / prosecution to proceed.
But Truthful Information: Press must abide by generally applicable law: promisorry estoppel (cohen) (breach of confidentiality K), copyright infringement.
V.            Obscenity; Child Pornography; Hate Speech (unprotected speech)
Miller Test:
1.       Average person applying contemporary community standards would find it appeals to a prurient interests
2.       Patently offensive depiction of hard core sex.  (defined expressly by statute (community)
3.       Lacks any serious literary, artistic, political or scientific value (objective reasonable person standard)
Child Pornography
Ferber:  “Where statute adequately defines the prohibited conduct, visual depictions of sexual conduct by actual children below a defined age gets no 1st amend protection, including private possession of.”
Fighting Words & Offensive Speech
Fighting Words
Chaplinsky: “Face to face insults, which, by their nature tend to inflict injury or trigger imminent breach of peace.”   Should be targeted towards specific person/group, and must consider context of audience.
Offensive Speech: People in public places must be subject to some objectionable speech. (Cohen) 
Hate Speech
True Threats: Threat is sufficiently imminent and a reasonable person would perceive that threat is likely to occur.  Target likely required.  
Speech protected unless it meets true threats, otherwise will be considered viewpoint discrimination and protected by 1st.  The government cannot regulate even unprotected fighting words solely on the basis of an underlying hostility or favoritism for the particular message they express: this would be viewpoint discrimination. (RAV) 
Only categories have been excepted from  first amendment protections when they are a “previously recognized, long established category of unprotected speech.” (US v. Stevens).  Same with video games, a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. (CA v. entertainment merchants association)
VI.            Symbolic Speech; Commercial Speech
Symbolic Speech
O’Brien Test:
·         Is the conduct expressive?
§ Is there an intent to convey particularized message?
§ Great likelihood message will be understood?
Does regulating the conduct advance an important government               interest?
§ notice: Important, not substantial
Is that interest unrelated to suppression of expression?
Is the incidental restriction on speech no greater than is essential
§ Last test sounds like S.S. but the application is Int. Scru.—application in cases like O’Brien gives the legislature deference

Glenn Theater (trickiest case), since it was a total ban on expressive conduct (nude dancing)
Commercial Speech
Intermediate scrutiny applies to all commercial speech.
Central Hudson Test: Speech in the context of a proposed commercial transaction protected if it involves a lawful activity and is neither false nor misleading.  The speech may be regulated if there is:
1.       A substantial government interest;
2.       It directly advances interest;
3.       No more restrictive than necessary
a.       May not totally ban truthful non-misleading advertising if there is a less restrictive alternative
Glickman (tricky case): Forced speech in commercial

to justify termination unless you can prove it affects (4) Pickering factors.

Letter Carriers: Federal employees prohibited from being part of political management or political campaigns.
IX.            Government Funding
Rust/Ceballos: Speech as an aspect of the funded activity may be limited.
Unconstitutional Conditions Doctrine: Government may not deny recipient benefits they were otherwise entitled to receive because they engaged in otherwise constitutionally protected conduct.
Rust: Government may restrict communications between doctors and patients when doctors are engaged in speech commissioned by the government itself.  Court upholds regulation that restricted the speech to the patient by a doctor funded by Title X to not mention abortion as option.
Harris: Court held that States that participated in Medicaid were not required to fund medically necessary abortions for which federal reimbursement was unavailable as a result of the Hyde Amendment, which restricted the use of federal funds for abortion. Negative right, government just has to keep your right available.
Velasquez: Government may not restrict communications between a lawyer and a court when speech is funded by government, but is not reasonably attributable to the government.  Particularly true when restrictions distort the proper functioning of federal courts.  SCOTUS invalidated the federal restriction, which prohibited local recipients of LSC funds from engaging in representation involving efforts to amend or otherwise challenge the validity existing welfare laws.  Distinguish from Rust, attorneys representing private ppl, not government.  Private speech not government.
Finley:  SCOTUS upheld as facially constitutional the “decency and respect” standard that Congress imposed for NES grants. In this case, various artists sued the National Endowment Arts.  No chilling effect since not punishment, just money.  Not vague, standards already subjective.  Not viewpoint discrimination, just choosing what to fund.  Court said this isn’t controlling, just guidelines.
Am Library Association: A fractured court, with no majority opinion, reversed the injunction and rejected the facial challenge to the Children’s Internet Protection Act (CIPA) which requires libraries as a condition of receiving federal funds to install internet filter for children.
Rust: May limit funded speech (Government purchased speech).
Velasquez: May not limit funded speech (Speech not fairly attributed to government).
Finley: Maybe you can’t require funded speech be decent (Decency standards for government funding do not “control” private speech).
Library: You may require funded speech be decent (Funding access to some private speech does not require funding to all private speech (see also Rust)).