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

First Amendment
Fall 2014
– First Amendment [Structures Only]  
First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the government for a redress of grievances.”
General Rules:
·         Protected Speech = Either SS or IS
·         Unprotected Speech = RBR
·         Strict Scrutiny:
o   Compelling Government interest not related to the suppression of speech and least restrictive means possible
·         Intermediate Scrutiny:
o   Legitimate Government Interest that is narrowly tailored (TPM: to leave ample alternative channels of communication)
§  Note: in commercial speech it is “in a manner no more restrictive than necessary” rather than “narrowly tailored..”
·         Rational Basis Review:
o   The law must be rationally related to the objective congress is trying to achieve and not specifically forbidden by the constitution
·         Content Based Speech Regulations: S.S.
o   Regulation treats speech differently based on either viewpoint or subject matter of the speech; content based regulations could, nevertheless, be viewpoint neutral.
o   Secondary Effects Doctrine: I.S. Restrictions that would have been content-based are ‘content neutral’ if the ‘secondary’ harmful effects are targeted (e.g., adult businesses may be regulated if the gov’t is concerned with the harmful side effects associated with it such as increased crime and prostitution).
·         Viewpoint Discrimination: S.S.
o   Rule:  The government may not, S.S., discriminate upon “point of view”
o   When per se unprotected categories of speech sometimes contain an extra viewpoint discriminatory criteria, such as a statute saying  “no fighting words specifically against black people”, then that is viewpoint discrimination bc it has no reasonable relation to the rationalized reason or the unprotected speech’s regulation. It is not viewpoint discrimination, however, to use viewpoint (i.e. racial animous) during the sentencing of a crime.
Dangerous Advocacy
·         The advocacy of violence is protected speech until the advocacy incites people to imminent lawless action in accordance to the Brandenburg test:
o   Brandenburg Test:
§  (1) Direct Advocacy (Judge Hand’s test)
·         Must be certain and direct; cannot merely be based on an inference that a certain indirect advocacy consistently yields certain illegal results
§  (2) [Speaker must intend for] Imminent lawless activity to occur [and it must objectively actually be likely to occur ](Holmes’ Clear and Present Danger test)
·         Requires both a  subjective and an objective element here.
o   Objective = objectively likely to occur.
o   Policy: No time for reasoned debate
Facial Attacks at a Statute:
·         Vagueness
o   An impermissibly vague statute under the due process clause is unconstitutional. A statute is unconstitutionally vague if the statute is such that a reasonable person would have to guess at the specifics of the law.
o   Vague statutes are a problem because they have a chilling effect upon otherwise constitutional and protected speech; this creates a suspicion that what would otherwise seem to be a content based restriction is actually wearing a cloak of a vague-time/place/manner restriction.
o   Vague statutes delegate “unbridled discretion” to government officials as to how to enforce.
o   Due process violation because it violates its central premise requiring notice and opportunity to be heard before subject to government action.
o   Last refuge of a party’s attorney.
·         Overbreadth
o   Must be substantial overbreadth
o   A statute is overly broad if, in regulating unprotected speech, it also:
§  (1) substantially regulates protected speech by way of deterring/chilling what would otherwise be constitutionally protected speech
o   The overbreadth doctrine allows a party, to whom the law may constitutionally be applied, to challenge the st

ndividual participated in the particular controversy which gave rise to the alleged defamation.”
A key to being defined as a public figure is regular and continuing access to the media yielding more opportunity to counter false claims (this serves as a policy rationale to counter false claims).
• S.S UNLESS (1) false, (2) defamatory, (3)
Actual Malice requirement (K/ of falsity or Reckless disregard for the truth). This heightened mens rea exists because the Courts recognize that erroneous statements are inevitable in free debate and such must be protected to avoid discouraging valid criticsm of public concern.
• Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community.
• S.S UNLESS (1) false, (2), defamatory, (3) made negligently (punitive damages à actual malice)
• States may pass laws regulating libel against private individuals when: (1) false statement (2) made negligently plus actual proof of damages w. actual malice for punitive damages.
Invasion of Privacy Torts = disclosure of private, true, facts. Two ways to succeed on a Invasion of privacy tort (between two private actors)
            i Elements:
(1) Disclosure of private facts
(2) Highly offensive to reasonable person
(3) Not of legitimate public concern
                        à Speech deals with matters of public concern when it can be fairly                           considered as relating to any matter of political, social, or other                                   concern for the community.