Unprotected Speech

Incitement to Violence or Subversion

 Speech that seeks to bring about immediate illegal conduct
o Directed at producing imminent lawless action
 Separates true incitement from mere advocacy of violence or other unlawful behavior
o Likely to produce such action
 Former, now obsolete test: clear and present danger test
o clear and present danger of causing others to violate the law, or causing harm to others

Fighting Words
 Words that are likely to provoke an ordinary person to an immediate violent response
o Direct personal insult or invitation to exchange fisticuffs
o Fighting words has to be face to face
 But: Mere offensiveness in a public setting is not enough to justify suppression of speech (Cohen)

Hostile Audiences
 Provocative speech creating likelihood of immediate violence by hostile audience
 The Court once sustained a conviction for disorderly conduct of one who refused police demands to
cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened
disorders
 Permit requirements as an alternative approach
o Must be content neutral, and acceptance/denial must not be determined by government official
discretion
o Same goes for fees - a law imposing a variable, non-nominal fee on public demonstrations
violates the First Amendment.

Defamation

Individual Defamation - Basic 1st Amendment Requirements

 Public official or public figure plaintiff
o Actual malice - for any type of damages
 With knowledge or reckless disregard of the truth or falsity of the allegedly defamatory
statement
 Private figure plaintiff
o Mater of public concern (Gertz) =
 actual malice for presumed or punitive damages
 Fault for actual damages (at least negligence)
o Matter of private concern (DB) =
 No 1st amendment requirements?
 Can be awarded punitive or actual damages seemingly with at least fault, but may not
have to even prove fault - court is unclear
 Defining public figure:
 Well-known, active in community, role of prominence, thrust himself or his views into public
controversy to influence others

Intentional Infliction of Emotional Distress

 Claims that are brought against speakers claiming an intangible tort injury, not an
injury in reputation (which defamation is designed to vindicate)
 Hustler Rule for IIED
  For public figures/officials, the First Amendment prohibits assigning liability for intentional
infliction of emotional distress due to publication of a caricature or parody without a showing
that the publication contained a false statement of fact made with actual malice, i.e., with
knowledge that the statement was false or with reckless disregard to its truth or falsehood.
 Snyder Addition (Westborough Baptist Church protest):
 Where it is a private figure, but a matter of public concern - seemingly protected by the First
Amendment

Privacy
 The Supreme Court has reached this question with respect to “false light” invasion of privacy claims,
claims against the disclosure of facts already in the public record, and appropriation claims.
 Four distinct types of privacy invasion have emerged:
o Intrusion into the plaintiff’s private affairs
o Public disclosure of non-newsworthy facts the plaintiff would have preferred to keep secret
o Publicly placing the plaintiff in a false light,
 Must show actual malice (defendant published the report about the plaintiff with
knowledge of its falsity or reckless disregard of the truth)
o Appropriation of the plaintiff’s name or likeness
 First Amendment does not immunize the media from liability for damages when they
broadcast a performer’s entire act without his consent.” Human cannonball act.
 True privacy claims
o Something is published that is true but it is a private matter the publisher should not have
published
o Court seems to hold if media obtained the media lawfully and it is true and somehow relates to
matter of public concern (like crime), the publisher can publish it, it is protected speech

Hate Speech
 Racist speech, hate speech in itself is protected by the Frist Amendment unless it falls into another
category such as fighting words
 RAV: Cannot regulate even unprotected speech in a manner that is viewpoint discrimination
o But, when the basis for the content discrimination consists entirely of the very reason the entire
class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination
exists.
 BUT: The First Amendment permits states to enact statutes imposing stricter penalties on defendants
who choose victims based on their membership in a protected class, such as race.

2-Track Analysis
 Content Based Regulation:
o Government must satisfy:
 Categorization analysis or
 Protected expression
 Unprotected expression
 RAV - Government must still justify second level content discrimination
(regulating unprotected speech) under categorization ("special
virulence") or strict scrutiny
 Strict scrutiny
 Compelling interest
 Necessary to serve that interest
 Content-Neutral Regulation
o Less protective ad hoc balancing
True Threats
 Statements intended to communicate a serious intent to commit unlawful violence to a specific
individual or group
o Ex: cross burning with intent to intimidate - falls into "special virulence" of RAV analysis

Obscenity
 If speech is sexually explicit but is not obscene and does not constitute child pornography, it is within the
realm of First Amendment protection.

2-Track Analysis
 Content based regulation
o Satisfy strict scrutiny
 Compelling interest
 Necessary regulation - effectiveness, congruence, other alternatives
o Satisfy categorization analysis
 Protected Expression
o Fully protected - cannot regulate
o Lower value expression
 Sexually explicit but non-obscene expression
 Indecent speech
 Can justify based on secondary effects - but for low value speech only
 Unprotected Expression
o Can regulate
o Still restrictions on viewpoint discrimination
 Content neutral regulation
o Less protective ad hoc balancing

Miller Obscenity Test:

 The work depicts or describes
o Specifically defined sexual conduct (to avoid chilling effect)
o In a patently offensive way
 As viewed by the average person applying contemporary community standards
 The work as a whole appeals to the prurient interest and
o Trying to get at shameful or morbid interest in sexuality
o As viewed by the average person applying contemporary community standards
o Less judicial discretion/review - based on community
o One national standard = has to be at least graphic/hardcore
 The work as a whole lacks serious literary, artistic, political, or scientific value
o More judicial discretion, not a community standard

Balancing:
Government Interest:
 Protecting children and unwilling adults
 As to willing adults:
o Preventing crime
 Crimes like rape, assault
 At the time of decisions - court was also thinking about adultery, homosexual
relationships, sex outside of marriage
 o Protecting societies moral standards
 Changing sexual practices and attitudes
 Religious, moral understandings of sexual behavior - we don’t want people have
sexual attitudes that conflicts with governments idea of appropriate sexual
behavior
 "Tone of Society"
 Should not be a matter of public consumption - matter for private concern
First Amendment Interest:
 Literary and artistic expression implicate values in citizenry
 Personal self fulfillment value

Child Pornography
 The court has held that the state's interest in protecting children form sexual abuse justifies prohibitions
against both the actual production of child pornography and the possession of it by consumers, whether
or not the pornography is technically obscene
 The government may criminalize the private possession of child pornography.
 Test:
o The work depicts specifically defined sexual conduct by a minor
o IF there is a serious literary, artistic, political, scientific exception it is only if the depiction itself
has serious value

Violent Speech in Media

 Animal Cruelty
o Court declines to create a new category of unprotected speech
 Violent Video Games
o Court declines to create a new category of unprotected speech
 Subordination of Women
o States have tried to treat pornography as a civil rights violation on the ground that it constitutes
sex discrimination or the subordination of women to men
o Court rejected one attempt as viewpoint discrimination

Animal Cruelty
 Hunting is legal in many states/jurisdictions, can encompass other things that are legal
 Court says we don’t do categorical exclusions anymore, we don’t do definitional balancing - not going to
make a new category of animal cruelty - if its not historically a category not going to recognize it now
 Maybe a more specific statue limited to only crush videos might be upheld under strict scrutiny but that
was not this statute

Violent Video Games

 Court not going to create a new category of protected speech
 In theory, government can still regulate based on strict scrutiny - just cant regulate based on
categorization argument
o This speech is just protected subject to the government being able to meet scrutiny
o Strict scrutiny on this statute -
 no good direct evidence that violent video games cause violence
 Does not seem to serve the compelling interest of preventing harm - not clear that this
law effectively addresses the harm of children committing violence
  Congruency - if you are worried about kids exposure to violence you would have to ban
thousands of books, movies, etc - suggests you're not really concerned about violence
because you permit some and not others

Subordination of Women
 States have tried to treat pornography as a civil rights violation on the ground that it constitutes sex
discrimination or the subordination of women to men
 Court rejected one attempt as viewpoint discrimination

Sexually Explicit but Non-Obscene Expression

 Court proceeds from the assumption that indecent or sexually explicit speech that does not amount to
obscenity is protected speech and that severe restriction or total bans of such will be strictly reviewed.
o Balancing: Instead of categorizing such speech as lower value for all purposes, the Court has
balanced the burden on such speech against the relevant state interests.
 Nudity ban at drive in: The government cant regulate expression based on its subject unless it has clear
reasons for distinguishing one type of content from another

Zoning Commercial Sexual Expression

 While the court has invalidated total bans on nudity, it has indicating a willingness to allow legislatures
to impose substantial regulations on where sexual commercial activity, including sexually explicit
expression, may be carried out
o Might be content neutral if targeting secondary effects associate with such business - ONLY
applies to lower value speech
o Court says there is a burden is on government to justify the restriction/zoning law but the
burden is minimal - the government can rely on any evidence reasonably believed by the city

Indecent and Sexual Speech in New Media

 The Court has considered several restrictions on sexually explicit but not obscene
communications over various communications media. Decisions follow a pattern similar to that in the
zoning cases: Outright bans are invalidated but some partial regulations are upheld.
 Broadcast:
o Regulation permitted
 Mail:
o Government can adopt regulation that permit would be recipients to opt out of sexually
orientated mailing
o BUT:
 May not ban unsolicited advertisements for contraceptive products (condoms)
 May not ban political inserts in utility bills
 Telephone:
o Can ban this type of phone communication if it is obscene, but cannot ban if it is not obscene -
any regulation for indecent speech must satisfy strict scrutiny
o Don’t need opt out because dialing in, but may be possible to regulate to keep out of children’s
hands by requiring Credit Cards.
 Cable:
o Government can adopt regulation that permit would-be recipients to opt out of sexually
orientated cable programming.
 Internet:
o Internet is not as invasive as radio or television - attempts to regulate children's access to
material must survive strict scrutiny and be mindful of limits on adult access
Commercial Speech
 Commercial Speech Definition: speech that does nothing more than propose a commercial transaction
 This is lower value speech, there are some protections
o Protection does not extend to advertisements for illegal transactions, factually false or
misleading advertisements
o There may still be content based regulation that is short of a total ban
 Courts will apply intermediate scrutiny - reminiscent of the standard the Court applies to content
neutral regulations of conduct or the time, place, and manner of speech.
o Where there is paternalistic motive that results in basically a complete ban - Central Hudson will
be applied vigorously
 Central Hudson Intermediate Scrutiny Test: “Government may justify a regulation of truthful and non-
misleading advertising of lawful transactions only if it “directly advances” a “substantial” government
interest by means that are “not more extensive than necessary.”

Categorization
 Protected Expression:
o Fully protected
o Lower value speech:
 Non-obscene depictions
 Indecent speech
 Commercial speech
 Unprotected Expression:
o Illegal transactions
o False/misleading

Commercial Speech Intermediate Scrutiny

 Substantial government interest
 Directly advances the government's interest
o And does so in a way that is not unnecessarily restrictive (not least restrictive means - just
narrowly tailored)

Distinction Between Content-Based and Content-Neutral Laws

 Content Neutral Regulation (on its face or as applied):
o Government interest must be unrelated to the suppression of free expression (content neutral).
o Government has to be unconcerned with the content of the speech, regulating because
Government thinks the expressive/symbolic conduct is harmful regardless of the communicative
message it might contain.
o Amount to an ad hoc balancing test. Not strict scrutiny, not rational basis, intermediate.
 Content Based Regulation (on its face or as applied):
o If the government's interest is NOT unrelated to freedom of expression, but is instead content
based, then you don't follow the ad hoc test of Obrien, you have a more rigorous approach.
o Government deems expression harmful because of its content, communicative impact,
government thinks the message or subject matter of the expression will bring about some harm.
Much more rigorous approach.

Content Based vs. Content Neutral Regulation of Speech

 Content Based Regulation (on its face or as applied)
o Government must satisfy
 Categorization
 Protected expression
  Fully protected
 Lower value
 Non-obscene depictions
 Indecent speech
 Commercial speech
 Unprotected expression (incitement, fighting words, etc.)
 Can still regulate - restrictions on viewpoint discrimination
 RAV - Government must still justify second level content discrimination
(regulating unprotected speech) under categorization ("special
virulence") or strict scrutiny
 Strict scrutiny
 Compelling interest
 Necessary regulation
 Content Neutral Regulation (on its face and as applied)
o Must satisfy O'Brien ad hoc balancing
 Substantial government interest
 Has to advance that interest
 Narrowly tailored (not least restrictive means) (the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest)
 Thumb on the Scale:
 In the context of traditional methods of communicating on traditional public
forum property

Regulating Symbolic Conduct

 To determine whether conduct is sufficiently communicative to invoke First Amendment protections,
the court examines whether there was an intent to convey a particularized message through the
conduct and the likelihood that the message would be understood by people viewing it.

Student Speech in Public Schools

 Unlike streets and parks and other public forums, public education is a context in which speech is highly
controlled.
o The classroom is a place of structured dialogue bounded by teacher authority and rules of
decorum, and the curriculum itself prescribes which ideas are to be studied and discussed
 Government can regulate student speech, if and only if, it is likely to bring about a material and
substantial disruption of the schools / educational function of the schools.

Flag Desecration
 Court declines to create a special category of speech for the flag
 Attempts to criminalize flag burning have been unsuccessful - related to expression and thus must
survive strict scrutiny

Nude Dancing
 Court continues to prohibit public nudity with a mix of reasoning between content neutral pure and
simple and secondary effects..

Regulating Use of Public Forum

 Licensing Schemes:
o Permissible to have content neutral licensing scheme so long as licensing requirements are
content neutral and have some standards that constrain the discretion of the licensors.
 Content-Based Regulation
o Government is in the upper track and must satisfy strict scrutiny or categorization analysis.
  Content-Neutral:
o Government is on lower track and must satisfy O’Brien style balancing.
o However, there is the added element to the O’Brien test –i.e., thumb on the scale—that in the
context of traditional methods of communicating on traditional public forum property
 because the method is highly valuable, Court will eschew any argument that there exist
“alternative means of expression” thus making it more difficult for the government to
meet its burden as the First Amendment interest is weightier.
 Thumb on the scale: door-to-door distribution, leafleting, public speaking even with speakers, signs in
one's home, internet
 No thumb on scale: concerts

Abortion Clinic Protests

 Court is generally against floating buffer zones larger than 8 feet that prevent protesters from
approaching staff, patients
 Have approved fixed buffer zones, noise regulations, floating buffer zones of 8 feet

Speaker Access to Nonpublic Forums

 Traditional Public Forums:
o Streets, public parks, sidewalks
 Designated Public Forums:
o Where government opens public property for expressive activity
 Nonpublic Forums:
o The key inquiry in determining whether a place is a limited public forum or a nonpublic forum is
the intent of the government in permitting speech in that place
 The court considers the nature of the property, the compatibility of the property with
expressive activity, and the limitations actually imposed by the government on the types
of speech in determining the government’s intent.
o Airport terminals, house mailboxes, open areas in military base, public broadcasting channel,
polling places, public libraries
 Limited Public Forum?:
o Court has made mention of this more recently
o Some suggestion court now combines nonpublic forum and limited public forum - a setting
governed by the requirement that the government regulation be reasonable and viewpoint
neutral

Claims of Access to Public Forums vs. Designated Forums vs. Nonpublic

 Traditional Public Forum:
o Content-Based:
 Categorization
 Strict Scurtiny
o Content Neutral:
 O'Brien ad-hoc balancing with thumb on the scale argument open if a traditional
method of communication in a traditional public forum is regulated.
 Designated public forum - created by governmental designation
o Content-Based:
 Categorization
 Strict Scurtiny
o Content Neutral:
 O'Brien ad-hoc balancing
o Can be closed at any time
o Can limit by subject matter or speaker identification as long as you avoid viewpoint
discrimination
  Nonpublic Forum
o Viewpoint Discrimination
 Must survive categorization or strict scrutiny
o Discrimination by speaker identification or subject matter
 Test is reasonableness - rational basis type review
 So long as government acts reasonably in imposing such restrictions, and the prohibition
is content neutral

Religious Speech on Public Property

 If a state has created a forum that is generally open to the public, the Constitution strictly limits under
what circumstances the state may exclude people from that forum
 To justify excluding a group based on the religious content of the group’s intended speech, the
state must show that the regulation excluding the group is necessary to serve a compelling state
interest and that the regulation is narrowly tailored to achieve that interest.

Government Speech
 In determining whether something constitutes government speech, court has looked to:
o the history of the expression at issue,
o the public's likely perception as to who (the government or private person) is speaking,
o and the extent to which the government has actively shaped or controlled the expression
 Similar to nonpublic forum - no or minimal first amendment limits
 Government Speech: license plates, monuments on government property
 Not government speech: trademarks, flags outside city hall where gov had a practice of allowing groups
to display flags

Rights of Access to Private Property

 There is no first amendment right of access to private property

Internet
 Under conventional doctrine, individual cannot make direct claim of access against internet company,
social media company - no right of access under the first amendment
 Reno and Packingham Cases Distinguished:
o Different because government is the one choosing to exclude, not the private entity
o Not a regulation of government property, but content neutral test is applied with special
strength because the speech is deemed highly valuable
o This is NOT permitting a direct access claim to social media - this is because government
restricted access

Speech in Public Schools

 Under the First Amendment, school officials may properly punish student speech with suspension if they
determine that speech to be lewd, offensive, or disruptive to the school’s basic educational mission.
 Lewd, offensive, disruptive speech/expression:
o School may regulate/punish
 Promoting illegal drug use:
o Schools may regulate/punish
 School Library Books:
o Think of as access claim from authors of the books: nonpublic forum analysis
o Viewpoint Discrimination: Must survive categorization or strict scrutiny
o Subject Matter (vulgarity, educational suitability): Reasonableness
 School newspapers:
 o Nonpublic forum - school officials entitled to exercise editorial control over the style and
content of student speech in school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns.

Religion Clauses

Free-Exercise Clause

Free Exercise Clause - Impermissible Burdens

 Freedom of Belief (absolute protection)
 Freedom of Action
o No discriminatory burdens (strict scrutiny)
 An indirect burden can constitute a burden on free exercise - incentivize or
disincentivize religious choices
 But, history of deferential approach in context of military, prison
o Religion-based exemptions from nondiscriminatory laws (Smith)

Religious Based Exemptions from Nondiscriminatory Laws

 General rule of employment div. v. smith
o Free exercise clause does not require exemptions - violated only if you have targeting
 Exceptions:
o Hybrid constitutional claims (like Yoder - parental rights)
o Law is not "generally applicable"
 individualized assessment situation
 Law exempts comparable secular conduct (most favored nation)
o Ministerial exception/institutional autonomy

Claims for Religion Based Exemptions

 Federal law and actions
o RFRA
 State law and actions
o Land use/prisoner claims - RLUIPA
o State RFRA/state constitutional law if available
 Otherwise - 1st Amendment - Smith

RFRA/RLUIPA
 Compelling government interest
o Least restrictive means
 Free exercise interest
o Degree of abridgment
RFRA/RLUIPA: If substantial burden on exercise of religion, gov must survive strict scrutiny - compelling interest,
least restrictive means

Establishment Clause

Establishment Clause - Impermissible Benefits

 No favoring one religion over another
 No favoring religion generally over irreligion
  Considerations
o Coercion
o History and tradition
o Free exercise accommodation

New Kennedy v. Bremerton Test:

 Historical practices and understandings test
 Only direct coercion is presumably problematic

Overruled Tests:

Lemon Test:
 Must have a secular purpose
o No purposeful discrimination
o No purposeful advancement
 No primary effect of advancing one religion of religion generally
 No excessive entanglement with religion
Now formally overruled - now guided exclusively by historical understandings and practices

O'Connor Endorsement Test

 No Purposeful Endorsement (objective inquiry)
 No Effect of Advancing
o Reasonable observer (objective inquiry)

Schools
 Generally, before change in test, Court allowed release time for religious education, use of school
facilities for Christian group after school
 Did not allow: sectarian classes in school, state crafted prayer recited in school, designation of time for
devotional bible reading, starting school with prayer, rabbi giving graduation prayer, prohibiting
teaching of evolution, requiring teaching creationism

Legislative Prayer
 Generally allowed - historical tradition
 Constraints:
o If the practice overtime shows that it denigrates non believers
o If officials directed the public to participate in prayers , singled out people, or indicated their
decisions might be influenced by a person's decision to join in the prayer

Other Symbols
 Generally okay if there is some non-secular appearance/purpose observable by viewers

Public Financial Aid to Religious Institutions

 If extension of funding is permissive by establishment clause, it is now required by the free exercise
clause if state chooses to extend nondiscriminatory funding elsewhere

Lemon Test
 Secular purpose; no purposeful favoring
o Virtually without exception, the first requirement of constitutionality under the Lemon and
endorsement tests, that of secular purpose, has been readily satisfied in the public aid context.
 No primary effect of advancing (collapsed with entanglement)
o Nondiscriminatory extension of benefits
  Indirect aid
 Has to be a true private choice
 Direct aid
 Generally permitted as long as neutrally framed in nondiscriminatory manner
 Possible limits on nondiscriminatory extension of direct aid
 Cannot be unduly excessive entanglement
 Amount of direct aid cannot be too substantial
 Substance of aid must be secular and cannot be directed to religious
uses - but seems ok if some religious use ultimately as long as funding is
marked for secular purpose
 Exceptions:
 Tax exemptions
 Free speech access cases
 No excessive entanglement (collapsed with primary effect)
o Would have to be truly extreme case, like delegating government/civic power to religious
institution

Accommodations
 General principle of Smith - generally applicable laws do not demand exemptions for religious practices
under free exercise clause itself
 Court has consistently held that, to a significant degree, it is permissible for legislature to grant
exemptions even if free exercise clause does not require them
 Accommodation vs Delegation
 Government may not, consistent with the establishment clause, delegate to a religious entity
the power to exercise civic authority

Establishment Clause Limits on Permissible Accommodations

 Must be addressing a substantial burden on religion
 No undue 3rd party burdens or harms
 No delegation of government power
 No discrimination between or among religions