First Amendment - First Amendment

The following is a more accessible plain text extract of the PDF sample above, taken from our First Amendment Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting.

• Is it Constitutionally Protected Conduct?
• Is it Void for Vagueness? (Overbreadth? Over/under inclusive?)
• Chill speech?
• Is it outside the First Amendment?
  • Incitement, Obscenity, Libel, Fighting Words, …
  • Employer
  • Educator
  • Patron ($$)
  • Speaker
  • Aimed at Speech: SS
  • Neutral: IS
  • Incidental: Rational Basis
  • Traditional
  • Designated
  • Limited
  • Non-public forum
  • Right not to speak
  • Right to speak anonymously
  • Right to expressive association

  Religion:

  • Does it discriminate against religion?
  • Is it about an exemption to a facially neutral rule? (FE)
  • Does it Establish a religion:
    • Subsidies
    • Use of Public Spaces
    • Teachers
    • School Prayers
    • Curriculum
    • Public Displays

    Internet, Cyber-bulling, Political, New Categories, Balancing vs. Categories, Snowden (Holder, Pentagon Papers), Revenge Porn, Nude photos/videos w/o consent. Nudity (“Free the nipple”). Jennifer Lawrence “illegal to call people fat.”

    Pure Speech	Expressive Speech, TPM, Commercial	Pure Conduct	Unprotected Speech
    SS	IS	Rational Basis	Never allowed

    Outside First Amendment

    • Speaker and Audience on Same Side
      • Incitement (Brandenburg): (1) Specific Intent (Hand); (2) Grave harm imminent (Holmes C+PD); (3) Likelihood of causing illegal action (Schenck approach)
      • How to make a bomb (Progressive)
      • Fighting Words (Chaplinsky)
      • Offensive Words (Cohen) – OK unless directed at a person and likely to provoke violent response)
      • Hostile Audience (Terminiello) – No Heckler’s Veto, audience cannot censor speaker
      • Permits need Standards (Kunz, Forsyth)
      • NO group libel (Beauharnais)
      • Hate speech protected (Collin in Skokie, Nazis)
      • Hate speech Statute must be neutral and narrow. Can’t viewpoint discriminate within statute. (RAV)
      • Hate CRIME statute ok, b/c not speech (WI v. Mitchell)
      • Libel by Press requires (1) public official; (2) “actual malice”; (3) actual damages (NYT v. Sullivan)
        • Applies to Public figures (Curtis)
        • Private individuals must be (1) negligence; (2) false; (3) compensatory damages (malice -> + punitive) (Gertz)
        • No IIED if matter of public concern (Snyder)
        • Privacy requires knowledge of falsity or reckless disregard (Time v. Hill)
        • No liability for broadcasting true information in the public record (Cox v. Cohn, Florida Star)
        • Even if information illegitimately acquired, still 1st Am protection (Bartnicki)
        • No special treatment in courts (Cohen v. Cowles)
        • Prior Restraint: High burden on government to prove (Pentagon Papers)
        • Jury gag order: must (1) otherwise jeopardize fair trial; (2) no other means; (3) would actually assure fairness (Stuart)
        • Obscenity: (1) prurient interest; (2) patently offensive; (3) SLAPS (Roth)
        • Nudity
          • Can’t discriminate based on Nudity (Erzoznik)
          • Zone for diffusion (Young v. American Mini Theaters), for concentration (Renton), but needs evidence (Alameda)
          • OK in broadcasts (Pacifica); not Phone (Sable); not mail (Bolger); OK in leased cable operators (Denver v. FCC); not normal cable (Playboy); not the Internet (Reno v. ACLU) and must use least restrictive means possible (Ashcroft v. ACLU II)

          Government as Actor

          • Government as Educator: Generally OK to regulate classroom, less OK to regulate extracurricular
            • “It can hardly be argued that students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” – Tinker.
            • Has to be more than just uncomfortable (Tinker)
            • Disruptive, non-political speech OK to regulate (Bethel v. Fraser)
            • Can censor school newspaper – imprimatur of school (Hazelwood)
            • Field trips part of school day (Morse v. Frederick)
            • Fairness Doctrine: Yes to Broadcasters (Red Lion), no to newspapers (Tornillo editorial discretion). Moot after repealed by FCC
            • Conditions on Funding
              • Can Condition: tax code incentives (Regan v. TWR), Abortion gag rule (Rust), Discretionary artistic determinations (NEA v. Finley), Library Filters (US v. ALA)
              • Cannot Condition: 1A Violation (Speiser), Too much leverage (FCC v. LWV), View-point discrimination (Legal Services v. Velazquez)
              • Issues: Public v. Private Speech? Acting as employee or individual? Balancing interest of individual vs. employer. Public or non-public concern?
              • Can be fired for: criticizing boss within workplace (Connick); work memos (Garcetti); private conduct with a public concern (San Diego v. Roe)
              • Cannot be fired for: Public letter in newspaper (Pickering); political remarks (Rankin); speeches unrelated to job (US v. National Treasury Employees Union)
              • Rust: abortion gag rule
              • Johanns: Ads

              Commercial Speech

              • Special Rules: (1) Requirement of truth, legal, and non-misleading; (2) No overbreadth issue; (3) Compelling warnings, etc., OK; (4) No worry of Chilling effects
              • Central Hudson (1980):
                • (1) Not illegal, misleading;
                • + Intermediate Scrutiny: (2) Substantial government interest; (3) Directly advanced; (4) Narrowly tailored [Least restrictive? Alternative Channels?]

                Content-Neutral vs. Content-Based Statutes

                • O’Brien Tracks:
                  • [Viewpoint Discrimination: Strict Scrutiny]
                  • Track 1 Aimed at Speech: Strict Scrutiny
                    • Almost all cases struck-down, except Burson (election integrity) and Humanitarian Law Project (terrorism)
                    • Both Content-Neutral laws.