Courts have applied to all branches of government
- Extends to state and local as well
Issues
- Protected vs unprotected speech
- Content-based vs content neutral regulations
- Freedom not to speak: “compelled speech”
- Freedom of group speech: “expressive association”
Two major approaches
- Making categorical exceptions to the Free Speech Clause (typically defined by content)
- Distinguishing content-based restrictions on speech (almost never upheld) from content neutral restrictions (often upheld)
- Core axiom : Government may not regulate, punish, or discriminate against speech because of its content
- Types of content-based restrictions: subject matter, viewpoint
- Subject matter : Application of the law depends on the topic of the speech
- Viewpoint: Application of the law depends on the ideology of the message
- Content-based restrictions trigger strict scrutiny:
- Police Dep’t of Chicago v. Mosely
If government 1A does not protect speech → government can outlaw without 1A implications
- If it is protected speech → attempt to regulate it/punish it triggers either intermediate or strict scrutiny
1. Categorical Exceptions (Not Protected) - Fighting Words
- Direct personal insult likely to provoke a violent response — Chaplinsky
- True Threats:
- Threats of violence directed at person(s) with intent to cause fear of serious bodily harm or death — Virginia v. Black
- False and Misleading commercial advertising or advertising about unlawful activities
- (commercial speech IS otherwise protected, but LESS SO than other kinds of speech)
- Speech directed to inciting or producing imminent lawless action and is likely to produce such action — Brandenburg
- Obscenity and child pornography -- Williams, Miller, Ferber
- Obscenity elements:
- Appeals to prurient interest
- Beyond ordinary, shameful interest, or excites lustful or lascivious thoughts
- Work depicts sexual conduct in a patently offensive way
- Has no artistic, scientific, literary, or political value
- BUT protected-
- Non-obsence sexually explicit speech (pornography and “expressive” nudity)
- Virtual child pornography
- Careful here- look at notes
- Possession of obscene speech at home
- But not child porn
- Crime facilitating speech --speech integral to criminal conduct
- Ie- conspiracy
- False statements of fact --if said with sufficiently culpable mental state
- Ie- defamation, false light, perjury, etc.
- But no general exception for false statements
Protected Speech Examples
- Inflammatory speech to which there is a violent response, but is neither a direct personal insult nor directed at inciting imminent violence
- Insulting, offensive, outrageous, or insensitive speech
- Hate speech
- Pornography that depicts adults and is not obscene
- Violent video games and animal snuff videos
- Brown v. Entertainment Merchants: State law that prohibits the sale of violent video games to minors must be narrowly tailored to serve a legitimate government interest
- Video games, like books, convey a message that deserves 1A protection
- Government interest found weak b/c (at the time) was sufficient evidence of adverse consequences based on research
- (causal link b/t video games and violence not strong enough)
- Under-Inclusive b/c excludes portrayals other than video games and allows parents to purchase the games
- Over-inclusive b/c abridges 1A rights of young people whose parents and guardians think video games are a harmless past time
- *with newer social science evidence this may be a different decision
- Seems like some Wallace type thinking
A. Fighting Words
- Chaplinsky: D arrested for yelling at the Marshal “you’re a god damn fascist/racketeer” etc. face to face. Statute prohibited speech “directed at a person on public speech that derides, offends, or annoys others.
- As applied here, fighting words exception made this statute constitutional
- Reason for such an exception? Balancing test: exposition of ideas vs. society’s interest of morality
- Focus is on words that tend to incite immediate breach of peace, must be DIRECT insult (face to face)
- Modern rule: “ direct personal insult likely to provoke a violent response”
- Rarely applied, almost never applied to “one to many” type scenarios
- Ie- Brother Ross would be good to act under this
- Does not extend to merely insulting/demeaning words
2. Content-Based vs. Content Neutral Restrictions - Two types of content-based Restrictions
- Subject matter
- Ie- no political signs can be placed in yard
- Rarely upheld
- Viewpoint- only letting one side of controversy express its view
- Ie- only Clinton political signs can be placed in yard
- Types of laws are never upheld
- Police Dep’t v. Mosley
- Law banned picketing near school unless it was protesting labor dispute (Subject matter)
- Unconstitutional (after S.S.)- allows/disallows speech on the basis of what they are protesting
- Gov. interest weak b/c restriction didn’t apply to everyone across the board
- Reed v. Town of Gilbert: Ordinance regulated size and duration of placement of outdoor signs. Different rules applied to temporary directional signs as opposed to all other signs
- Ie- different set of rules for campaign signs that church organization directional signs
- Signs were treated differently based on type of sign as determined by the message in the sign itself (content)
- Even with innocent justification for the regulation, doesn’t matter → S.S. is applied
- (subject matter regulation)
Expressive Conduct
- Analysis
- Determine if “pure conduct” or “expressive conduct”
- If pure conduct → 1A doesn’t apply
- Protected speech or unprotected speech?
- Content based? (S.S.) or Content Neutral (I.S.)?
- United States v. O’Brien: D burns draft card on courtyard steps, convicted of knowingly mutilating/destroying draft card
- DA: burning the card was speech in protest of war
- If not speech (pure conduct) → 1A not implicated
- Is burning a draft card (conduct) speech? → Spence Test (when conduct is speech (expressive))
- Is there intent to convey a particular message
- and the likelihood the message would be understood by those who viewed it
- Here, D was clearly engaged in expressive conduct → Court employs O’Brien Test (what to do w/ regulations that restrict expressive conduct)
- Does law further an important or substantial government interest?
- Is government’s interest unrelated to the suppression of free speech?
- Is government regulating conduct for non speech reasons or speech purposes?
- If it was for speech purposes → strict scrutiny would apply
- Conduct purposes → intermediate (when this test applies)
- Gov. int. Strong here b/c have to keep up with draft information etc. (legit non-speech purpose, no computers back then)
- But Wallace- looks at legislative timing, conveniently placed right during Vietnam protests
- “Gov. can always make a non-speech purpose”
- Is law (means) substantially related to furtherance of that interest (end)?
- Can’t be too over or under-inclusive
- Texas v. Johnson: D burns American flag in public, convicted of statute reading “in a way that would offend someone else”
- Spence test, is this speech?
- Intent- yes, D did this to protest Reagan
- Objective? Yes, obvious
- Can gov. Regulate it?
- O’Brien test? No, statute and prosecution was aimed at expressive component of the conduct itself → O’brien doesn’t apply, APPLY STRICT SCRUTINY b/c content based
- Fails part two of O’brien (unrelated to the suppression of free speech)
- (ie- could burn in backyard and be ok)
- If charged with arson? Prosecutor would have been fine
- Government Interest: preventing breach of peace
- Court: no, no threat of physical violence etc.
- Gov. interest in protecting unity and nationhood through preservation of flag is also regulating speech itself