CONSTITUTIONAL LAW

Sarha Rasheed
Week 14
 WEEK 14 TOPICS
  Content-Based Regulations
  Content Neutral Restrictions
  Unprotected Speech
  Vagueness & Overbreadth
 First Amendment
 “Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof; or
abridging the freedom of speech, or
of the press; or the right of the people
peaceably to assemble, and to petition
the Government for a redress of
grievances.”
Content-Based Regulations
 The Supreme Court has stated, “[A]bove
all else, the First Amendment means that
government has no power to restrict
expression because of its message, its
ideas, it subject matter or its content.” A
content-based restriction on speech is
one in which the applicability of the law is
triggered by the substance or content of
the message being conveyed.
Content-Based Regulations
 Content-based regulations are
presumptively invalid and are subject to
strict scrutiny. The regulation must be
narrowly tailored to serve a compelling
government interest.
 Boos v. Barry (1988)
 A D.C. statute makes it unlawful, within
500 feet of a foreign embassy, either to
display any sign that tends to bring the
foreign government into "public odium"
or "public disrepute" (display clause), or
to congregate and refuse to obey a police
dispersal order (congregation clause).
 Chicago v. Mosley (1972)
 A Chicago ordinance provides that “a
person commits disorderly conduct when
he knowingly pickets or demonstrates on
a public way within 150 feet of any
school building while the school is in
session, provided that this subsection
does not prohibit the peaceful picketing
of any school involved in a labor dispute.”
 Protected Speech
 In 1969 the Court established a test to
determine whether the or not the speech
is protected under the 1st Amendment.
 The SC has held that the following fall
under Protected Speech
 Symbolic Speech
 Expressive behavior
 Gestures/actions
 Campaign spending
 Texas v. Johnson
 In 1984, in front of the Dallas City Hall,
Gregory Lee Johnson burned an American
flag as a means of protest against
Reagan administration policies. Johnson
was tried and convicted under a Texas
law outlawing flag desecration. He was
sentenced to one year in jail and
assessed a $2,000 fine. After the Texas
Court of Criminal Appeals reversed the
conviction, the case went to the Supreme
Court.
 Unprotected Speech
 The Supreme Court has identified some
categories of unprotected speech that the
government can prohibit and punish:
 Inciting imminent lawless action
 Fighting words
 Obscenity

 Inciting Imminent Lawless
Action
 Speech can be burdened if it creates a
clear and present danger of imminent
lawless action. It must be shown that
imminent illegal conduct is likely and that
the speaker intended to cause it.
 Fighting Words
 Fighting words refer to speech that is
directed at a specific person and is likely
to provoke an immediate violent
response in an average person.
 Chaplinsky v. New Hampshire
(1942)
 A state law provides “[n]o person shall
address any offensive, derisive or
annoying word to any other person who
is lawfully in any street or other public
place . . . .” A man is convicted after he
caused a disturbance outside City Hall
where he was distributing literature,
calling all religion a “racket,” and
repeatedly said “Your are a God damned
racketeer,” “a damned Fascist and the
whole government of Rochester are
fascists.”
 Obscenity
 Speech is obscene if it describes or
depicts sexual conduct that, taken as a
whole, by the average person:
 Appeals to the prurient interest in sex, using a
community standard;
 Is patently offensive and an affront to
contemporary community standards; and
 Lacks serious value (literary, artistic, political,
or scientific), using a national reasonable
person standard.
Content Neutral Restrictions on
Speech
 A content neutral law does not regulate
speech based on its content, but instead
restricts the time, place or manner of the
expressive activity.
Content Neutral Restrictions on
Speech
 Content-neutral restrictions are
constitutional as long as they are (1)
justified without reference to the content
of the regulated speech, (2) narrowly
tailored to serve a significant government
interests, and (3) leave open ample
alternative channels for communication
of the information.
Heffron v. Int’l Society (1981)
 A Minnesota State Fair Rule requires
organizations wishing to sell or distribute
goods and written material to do so from
an assigned location on the fairgrounds.
In other words, walking vendors and
solicitors were not allowed.
 Facial Challenges
 Laws that regulate speech can be
challenged on the grounds that they are
unduly vague and overbroad. A
successful facial challenge usually means
that the law is entirely invalidated, as
opposed to being declared
unconstitutional as to certain
applications. A person to whom the law
constitutionally can be applied can argue
that it would be unconstitutional as
applied to others.
 Vagueness
 A law is unconstitutionally vague if a
reasonable person cannot tell what
speech is prohibited and what is
permitted.
 Holder v. Humanitarian Law
Project (2010)
 The Patriot Act makes it a crime to
“knowingly provide material support or
resources to a foreign terrorist
organization.” The term “material
support” is defined to include “training,
expert advice or assistance.” The
Humanitarian Law Project, which seeks to
train certain groups on how to use
humanitarian and international law to
peacefully resolve disputes, brings an as-
applied challenge to the material-support
provision.
 Overbreadth
 A law is unconstitutionally overbroad if it
regulates substantially more speech than
the Constitution allows to be regulated.
 Prior Restraints
 The term “prior restraint” is generally
used to describe administrative and
judicial orders forbidding certain
communications when issued in advance
of the time that such communication are
to occur.
 Hess v. Indiana (1973)
 In May 1970, police arrested Gregory
Hess during a student anti-war protest on
the campus of Indiana University
Bloomington. A sheriff overheard Hess
utter the “f” word in a loud voice.
Witnesses testified that he said “We'll
take the fucking street later," or "We'll
take the fucking street again." Police
charged Hess with disorderly conduct.