Civil & Political Rights
Prof. Wise
Fall 2007
Free Expression of Ideas
1) The First Amendment: prohibits the state and federal government (via the incorporation doctrine) from abridging the freedom of speech
a) Rationales for Free Expression
i) Marketplace of ideas—more speech, more ideas, more choices, better chance to hear the truth
ii) Individual autonomy
iii) Self restraint and social tolerance—protect things you may not like
iv) Free speech is good in a free society
b) Distinctions between content-based speech and content neutral speech
i) Content based regulations regulate the subject matter of speech (e.g., political speech)
(1) Viewpoint-based regulations discriminate on the basis of viewpoint (e.g., law forbidding communist speech but allowing democratic speech)
(2) Strict Scrutiny applies: government must show that the law is narrowly tailored to achieve a compelling government interest
ii) Content neutral regulations regulate speech on some basis other than what is said (prohibiting use of anyone saying anything with a megaphone past midnight)
(1) Intermediate Scrutiny applies: government must show that the law is narrowly tailored to achieve a significant government interest and the law leaves open ample alternative channels of communication
iii) Low Value Speech is speech that is so far removed from the rationales of free expression that the Court will tolerate more limitations on low value speech, but it does receive first amendment protection
iv) U.S. v. Playboy
(1) Telcom Act gave Playboy choice to fully scramble/block sexually explicit materials or prohibit showing from 6 a.m. to 10 p.m.
(2) Standing to challenge the law rests with the speaker, not the listener (here, Playboy)
(3) Law struck down because it was content based, it was not obscene, and there were less restrictive means available
(4) Homeowners could call and shut off the programming individually instead of the two choices given
v) U.S. v. O’Brien
(1) Law prohibited the destruction of draft cards
(2) O’Brien burned his draft card and argues that it was protected speech
(3) Acts can constitute speech but might not be protected
(4) Speech intended as conduct does not automatically afford the speaker First Amendment protection
(5) O’Brien Test:Where laws punish conduct or apply to conduct that conveys a message, the law is valid if:
(a) Within the constitutional authority of government to create (all laws must be constitutional)
(b) Law must further an important government interest
(c) Law must be unrelated to expression
(d) Restriction is no greater than needed to further that interest
vi) Young v. American Mini Theatres
(1) Zoning ordinance prohibited stores that sold sexually explicit but not obscene materials from operating within a certain area of the city
(2) The court upheld the law because sexually explicit, non-obscene speech has low value
(3) Ordinance did not restrict viewpoint—it prohibited all “adult” places
(4) Purpose of the law had nothing to do with expression
2) Content-Based Regulation of Speech
a) General Rule: Content (and viewpoint) based regulation of speech receives strict scrutiny. The government must prove that the law is narrowly tailored to achieve a compelling state interest
b) Exception: Unprotected categories of speech, although content-based, can be freely regulated by the government so long as the government does not discriminate against a particular viewpoint.
i) Fighting Words
(1) Test: Speech that is directed at another individual, face to face, and is likely to provoke a violent response is not protected by the First Amendment
(a) This speech is unrelated to the exposition of ideas
(b) This speech has the p
eech.
1. D was distributing silly leaflets and he was a silly man
2. There was no danger associated with his speech
3. His intent was to obstruct fighting in Russia, not to obstruct the war effort
(c) Brandenburg v. Ohio
(i) KKK leader at a clan rally said that the Klan would take “revengence” on the country if the government continued to suppress the white man
(ii) He was convicted under a syndicalism statute for his words
(iii) The Court overturned the conviction because the statement did not incite imminent lawlessness, i.e., no clear and present danger
iii) Defamation
(1) Test: False statement of material fact about another is not protected by the First Amendment. Mere misstatements of fact are protected by the First Amendment
(2) Exceptions
(a) Public Figure
(i) Defamatory speech about a public figure is protected by the First Amendment unless the statement was made with actual malice
1. Either actual knowledge of its falsity or
2. Reckless indifference to the truth
(ii) “Public figure” is a factual determination, but public figures invariably have access to media vehicles.
(b) Private Figure
(i) Defamatory speech about (1) a private figure in (2) matters of public interest is protected by the First amendment unless the speaker was (3) negligent or acted with actual malice.
1. Negligence allows recovery of actual damages.
2. Actual Malice allows recovery of punitive damages.
(ii) Private figure is a factual determination
