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First Amendment
University of North Carolina School of Law
Marshall, William P.

LAW 234 First Amendment – Bill Marshall
Fall 2017 – UNC Law
Final Guide Outline
Ch. 1: Introduction
The Meaning of the First Amendment – Speech
Truth and the Marketplace of Ideas
Theory: The First Amendment protects speech because it is essential to the pursuit of truth. Thus, we should limit government interference & let the good/bad ideas sort themselves out.
Self-Government & Robust Public Defense
First Amendment protections are essential to our nation’s commitment to self-governance through healthy political debate. It is essential for everyone to participate in our self-governance without that participation being regulated by the government.
Individual Autonomy & Liberty; Self-Fulfillment
First Amendment helps develop individual autonomy, fosters self-fulfillment, and enhances individual liberty… helps the individual become the best possible person.
First Amendment is a shield against the government; protects individuals’ spheres of privacy.
Analytical Framework (of Free Speech)
Preliminary Questions: Expression, State Action
“Speech” = ~ Expression
Expression / expressive activities
Burning flags, draft cards, etc.
Signs / flyers / ads
Marches, rallies, protests, etc.
State action required
Without state action, 1st Amendment protections do not apply.
First Amendment is not an absolute ban on speech restrictions.
Many First Amendment cases balance the interest of the state in regulating expressive conduct against the individual right to free expression.
Content-Based & Content-Neutral Regulation
Viewpoint neutrality:
Government cannot regulate speech based on the speaker’s viewpoint aka the government cannot pick and choose to silence people based on their point of view (Ex: law saying nobody can talk out against abortion)
Content-based restrictions:
Government cannot place a restriction on an entire subject matter
 (Ex: law saying that nobody could talk about abortion)
Six main categories of unprotected / less-protected speech:
(1) – Incitement
(2) – Fighting Words
(3) – Libel
(4) – Hate Speech
(5) – Sexually-Explicit Expression
(6) – Commercial Speech
Forum Analysis
Quintessential public forum (aka ‘Traditional’)
Ex: street corner, park, etc.
Places where the public has traditionally had / exercised right to speak
Government may regulate time, place, and manner of speech
For public forums: this must meet strict scrutiny
Designated public forum
Ex: Public theaters, schools, universities, etc.
Government opens public space to speech activity, but not ‘traditional’ place
If the government opens it to speech, then it must be open to all on an equal basis, without regard to subject or viewpoint
Government may choose to close the forum at any time
Government may also limit the forum to speakers based on some content, for example, making school rooms available only to speakers who will speak on school-related business
Viewpoint restrictions are still impermissible
Non-public forums
Ex: Airports?
Government may restrict speech with very little restrictions, as long as they don’t exercise viewpoint-based controls
The Meaning of the First Amendment: Religion
Free Exercise Clause
Textual basis for our freedom of religious thought, belief, and practices
Protects people who both exercise and reject religious beliefs
Establishment Clause
Prevents the government from designating an official state religion
Prevents government from meddling in religious affairs
Attempts to police a line between:
Permitted actions (accommodating religion and making sure that religious activities are not disadvantaged), and
Prohibited actions (giving religious groups an extra advantage)
Analytical Framework (of Religious Clauses)
(1) Identify the government action being challenged.
State action necessary.
(2) Examine how the government action causes a problem for the individual.
Gov’t prohibit something individual does for religious reasons? – FE
Gov’t make something more difficult to do b/c religion? – FE
Gov’t grant religion (in general or 1 religion) a special status? – EST
(3) If problem is Free Exercise
Does the law explicitly single out and disadvantage a religious practice?
If so, law must withstand strict scrutiny
Is the law directed at religious practices – that is, was the intention of the law’s drafters to burden religious practices?
If so, the law must withstand strict scrutiny
Does the law apply generally to all persons, and was it adopted for a purpose unrelated to religion?
Permitted by FE clause if they satisfied minimal / rational basis scrutiny
Does a statute impose a greater restriction on government action that burdens religious practices?
Usually must satisfy strict scrutiny per state / federal law
(4) If problem is Establishment Clause
1 – Determine whether the actions falls into any of several categories that have specific tests or typical outcomes.
2- Lemon  test
In order to be valid, a law must:
Have a secular (non-religious) purpose,
Primary effect must neither advance nor hinder religion;
Law must not create excessive entanglement b/t gov’t & religion
3 – Endorsement
4 – Coercion
5 – Neutrality
Ch. 2: Categorical Exceptions to First Amendment Protections
Schenk v. United States (1919)      — clear & present danger test —
Words may be punished when they constitute a ‘clear & present danger’ of causing a harm that the government is authorized to prevent
 “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”
Abrams v. United States (1919)       — clear & imminent danger test –
First Amendment allows gov’t to intervene only in the face of “clear & imminent danger”
Strong argument for protecting dissenting policy views (marketplace of ideas theory)
Brandenburg v. Ohio (1969)       — re-formulated the clear & present danger test —
Holding: Government may punish advocacy of force or violation of the law only if the speech is “directed to inciting or producing imminent unlawful action and is likely to incite or achieve such action”
First Amendment protects ‘inciteful’ speech unless:

Virginia v. Black (2003)
Court upheld VA’s ban of cross-burning where act is coupled with intent to intimidate
Reasoning: since a burning cross is likely to intimidate & invite a breach of peace (either by inciting violence against the victim or provoking the victim to self-defense), there is some life in notion that “fighting words” remain punishable ~ confrontational setting
True Threat
If, as Chaplinksy suggests, fighting words are verbal provocations that precipitate violence, then punishment seems to be designed to deter violence rather than punish offensive language. In Virginia v. Black, Court permitted restriction only when intent was to intimidate (consistent with this theory). Classic analysis in this realm then focuses on the danger of retaliation to the provocation
Commercial Speech      (not an exception, but provided lower protection)
Commercial Speech is:
Speech (words, numbers, photos, symbols, etc.) provided as information from a business enterprise to attract purchasers of goods or services
Central Hudson v. Public Service Comm’n (1980)
Four-part test to analyze laws the restrict commercial speech:
(1) Speech must “concern lawful activity and not be misleading”;
Threshold for the speech to gain any protection at all
(2) The government must have a “substantial” interest;
Intermediate scrutiny — not “compelling” (which is strict)
(3) The regulation must “directly advance” that interest;
Intermediate scrutiny ~ ‘substantially related to’
(4) Regulation must be “no more extensive than necessary to serve that interest”
More similar to the strict scrutiny ~ ‘narrowly tailored’
Additional Categories
United States v. Stevens (2010)
Court struck down statute that criminalized animal ‘crush videos’
Gov’t argument:
A category of speech (here, depictions of animal cruelty) could be prohibited because, on balance, the value of the speech (little to none) was outweighed by the harm to society from the animal cruelty that would exist only because of the commercial market for the videos
Gov’t argument is “starling and dangerous” because it would allow new categories of unprotected speech ~ subjective balancing test
Listed the following categories of unprotected speech: “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.”
Note: obscenity includes child pornography
Brown v. Entertainment Merchants Association (2011)
Court struck down CA law which regulated sale of violent video games to children
In doing so, Court relied on the same reasoning as Stevens