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1st Amendment Review 1st Amendment: You can regulate or even ban certain types of speech not protected

by the 1st Amendment. But b/c certain types of speech are not protected by the 1st does not mean they are not speech. Thus, it is unconstitutional to ban on the basis of some viewpoint that is constitutionally protected. If you are regulating the content (subject matter or viewpoint), then strict scrutiny to ensure that government is not unfairly discriminating on the basis of the message. Strict scrutiny = compelling interest + narrowly tailored 1. Compelling interest: a. No clear test as to what is compelling. b. To be a compelling interest, it must be fairly serious. i. From affirmative action cases: remedying general discrimination is not a compelling interest, but where there is specific evidence of discrimination, remedying specific discrimination can be a compelling interest (Croson). Need strong basis of evidence. ii. From Grutter: diversity in education is a compelling interest. Creating role models literally is not a good enough reason. c. NOT compelling interests: administrative convenience (Frontiero), general societal discrimination 2. Narrowly tailored: a. Need to make sure that there is a fit between the means and the ends. Means have to fit the goal in order to minimize the possibility of illegitimate racial prejudice. Means must fit with better precision than alternative means (means to achieve the end must not be overly inclusive or under inclusive). b. In affirmative action: means must be designed to remedy the specific discrimination at issue. Means have to be necessary to achieve the purpose (you need to have serious good faith consideration of workable race-neutral alternatives). Consider some other ways that do not take race into account and find that they are lacking. i. From Grutter: not necessary to exhaust every raceneutral alternative. c. From Adarand: you really have to adopt the race-based solution as the absolute last resort after examining all other alternatives. d. NOT narrowly tailored: must be some individualized solution (Gratz). Set asides (quotas), BUT plus factors (Grutter) are ok.

And it must not rely on overbroad generalizations about the different talents. Application of Intermediate Scrutiny: 1. not hypothesized or invented post hoc in response to litigation. AND c. Parties who seek to defend gender based government action must demonstrate an exceedingly persuasive justification for this action. Indecency: 1. Distinguish from rational basis review: rational basis only looks to the purpose and the court tries to determine if the government objective remotely meets that purpose. Restriction of speech is no greater than necessary. Is the classification neutral (gender or race)? If it not discriminatory. or preferences of males and females. a. AND b. Indecency: . Taken as a whole. A classification based on gender must serve a. Incidental restriction of an alleged 1st Amendment freedom is no greater then is necessary to further that interest. The justification must be genuine. Depicts or describes. Interest is unrelated to suppression of free expression. does the adverse effect reflect invidious gender based discrimination? (if it is neutral is there evidence of purposeful discrimination or only disparate impact?) 2. 2.Intermediate scrutiny = important interest + substantial relation 1. artistic. 3. Taken as a whole. sexual or excretory activities or organs. Furthers an important government interest b. Important governmental objectives AN b. Exceedingly persuasive justification (VMI) a. O’Brien Test: 1. Important or substantial governmental interest 2. 3. Is the conduct expressive? If yes. in terms patently offensive as measured by contemporary community standards. 4. capacities. Obscenity: a. Means must be substantially related to achievement of those objectives. then 2. Is it content based or content neutral? If content neutral then 3. appeals to the “prurient interest” (designed to be titillating). Obscenity vs. If regulation is regulating conduct. political or scientific value. lacks serious literary.

Evidence that restricting indecent broadcasting will prevent harm to children. Helping parents. 2. Prior warnings do not completely protect the listener. in terms patently offensive as measured by contemporary community standards. BROADCAST = RADIO + BROADCAST TV FCC v. What is the government interest/policy? a. b. 3. the FCC issued an order that the language was patently offensive. Reasons for limiting 1st Amendment protection in broadcasting: indecency a. ii. UNIQUELY ACCESSIBLE: Broadcasting is uniquely accessible to children. Pacifica Foundation (1978): After the radio station broadcast a humorist's (George Carlin) monologue containing indecent language. Broadcasting uniquely pervasive AND c. Must be a compelling government interest. Must use least restrictive means. What are the means? a. FCC (1995) [ACT III Case]: statute bans the airing of indecent material from 10PM-6AM for some public stations and 12AM-6AM for everyone else. Action for Children’s Television v. Evidence here is drop-off in viewers after midnight. Spectrum scarcity b. Depicts or describes. But at that time. although not obscene. Evidence? a. 2. i. ii. b. doing so frustrates the goal of protecting children. b/c it is hypocritical for the FCC to allow for public access stations to start airing indecent broadcasts when there is no reason for the disparate treatment of broadcasts and anyway. sexual or excretory activities or organs. Uniquely accessible to children. UNIQUELY PERVASIVE PRESENCE: The broadcast media have established a uniquely pervasive presence in the lives of all Americans. Is 12-6 AM the least restrictive means? No. Protecting children – almost always found to be a compelling government interest. i. Three rationales for regulating broadcast as opposed to print: a. There must be evidence that the means supports the policy.a. That the means will do something to help the problem. adults and children both stop watching broadcast TV. b. . c. 1. 1.

i.” 2. it looks like the means are rationally related to a compelling government interest = intermediate scrutiny or broadcast scrutiny (defer to Congress). Court here upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. INTERNET not the same as broadcast/radio. by means of a telecommunications device. Some justifications for regulation of broadcast that are not applicable to other speakers: . Includes all of Title V and included provisions on top of the indecency provisions. Those who restrict by requiring certain types of age proof. ACLU (1997): At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. (a) the knowing transmission. 4. Reno v. b. You need to subscribe to Internet. but the people hanging around dirty movies are the problem. c. Renton: secondary effects doctrine. of "obscene or indecent" communications to any recipient under 18 years of age. Court looks at the 3 different lines of precedence: a. (d) the knowing use of an interactive computer service to send to a specific person or persons under 18 years of age 3. Applying different standards to children is ok. Having an adult only section restricting children is ok. The indecency provisions were struck down. Attempt to construct an “adult zone. b. Ginsburg: there are materials that are not obscene by adult standards. Pacifica: just because you can restrict indecent speech on broadcast doesn’t mean you can restrict indecent speech on any medium. Why? Internet is not as pervasive.” 1. 2. Provisions: a. No disproof of assumption that indecent material harms minors. 4. CDA: §223 1. Good faith restriction on access. The dirty movies aren’t bad. Affirmative defenses: a. but that are obscene by child standards. Criminal penalties for “display[ing] in a manner available to a person under 18 years of age. so it is treated differently. Standard of review: this is content-based regulation which triggers strict scrutiny. Problem: what is the harm? 1. b. not the same for broadcast and radio. You cannot restrict adults to sections only ok for children. This statute does not pass strict scrutiny. Here.

Less restrictive means: possible alternatives exist. . Overbreadth: includes everything on the Internet.a. 4. (e) the CDA was unconstitutional due to its overbreadth. scarcity of available frequencies. not how it was presented. Reasons: the history of extensive regulation of the broadcast medium. and manner analysis was inapplicable since the CDA regulated the content of speech. the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. d. These factors are not present in cyberspace. c. c. ACLU v. (a) the CDA's vague provisions chilled free speech since speakers could not be certain if their speech was proscribed. and its invasive nature. Indecent material could be tagged. Unlike CDA. CDA: applies to messages over the Internet as a whole (including e-mail). Problem here: in order to deny minors access of potentially harmful speech. CDA would prohibit AIDS pamphlets among other things. Harmful to minors is defined. makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors. case law does not provide any basis for qualifying the level of 1st Amendment scrutiny that should be applied to this medium. 3. (c) since the CDA regulated a fundamental freedom. COPA covers only communications made for commercial purposes. 5. in interstate or foreign commerce by means of the WWW. b. Distinguished from CDA: a. COPA applies only to material displayed on the WWW. SC: a. it must be narrowly tailored. place. Community standards: any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message. There could be some tolerance for parental choice. Ashcroft (2002):COPA (CDA Lite): Child Online Protection Act provided for civil and criminal penalties for anyone who knowingly and with knowledge of the character of the material. and e. 1. b. and thus were overinclusive. Therefore. b. (b) the CDA's provisions criminalized legitimate protected speech (including sexually explicit indecent speech) as well as unprotected obscene speech. (d) time. a. Regulate commercial sites differently from chat rooms.

Compelling interest: YES. 7. 6. c. b. ACLU has not shown that COPA is overbroad solely on the basis of the variation in the standards of different communities. when viewed in conjunction with the other provisions added to the already wide range of speech swept in by COPA. Affirmative Defenses. SC: If obscenity on the Internet is defined in terms of local community standards. 4. Community standards is not sufficient for the statute to be unconstitutional. c. so ‘taken as a whole’ really has no meaning. COPA’s reliance on community standards to identify “material that is harmful to minors” does not by itself render the statute substantially overbroad for purposes of the 1st Amendment. the "community standards" requirement. Material Harmful to Minors – although the statute itself says ‘taken as a whole’. Lower court: unconstitutional b/c statute does not survive strict scrutiny. Government enjoined from enforcing COPA absent further action by the CoA or the DC. Narrowly Tailored: a. CDA: prohibited indecent and patently offensive communications. . 3.2. Commercial Purposes: it applies to any commercial site including one that has advertising. Harmful to minors standard is vague as well as “commercial purposes. BUT. i. the court here says that the statute applies to each individual image. 5. This statute is not narrowly tailored to serve the government interest. really clear? Something harmful to a 5-year old might not be harmful to a 16year old. Is the definition of minors.” CoA: unconstitutional on different grounds. Least Restrictive Means: in findings of fact the DC concluded that blocking or filtering technology may be used to block Web sites and other content on the Internet inappropriate to minors. COPA restricts only the narrower category of material that is harmful to minors. But the site must be tailored to a 5-year old.