What is the test to determine sufficient expression to trigger the 1st Amendment?

(basically determining if there is speech involved)

Obrien four part test:

• be w/in constitutional power of the gov't to enact
• further an important or substantial gov't interest.
• interest unrelated to supperssion of speech (content neutral) aka "gateway element"
• prohibit no more speech than is essential to further that interest

• Speech that incites to imminent lawlessness
• fighting words
• obscenity
• true threats

(Brandenberg)

• advocacy directed to incite or produce imminent lawless action
• advocacy that is likely to to incite or produce imminent lawless action

• their very utterance inflict injury or tend to incite an immediate breach of the peace
• confined to direct personal insult
• regulation of fighting words can't be content based (underinclusive)
• courts typically averse to applying fighting words doctrine and tend to resolve cases on basis of overbreadth and vagueness

Miller test:

• whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
• whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
• whether the work, taken as a whole, lacks serious literacy, artistic, political or scientific value...

Watts factors:

• comments made during politcal debate
• conditional nature of threat
• context

Virginia v. Black:

• speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (speaker does not have to actually intend to carry out threat)
• intimidation is true threat, when intent is placing victim in fear of bodily harm or death

 Dinwiddie factors:

• the reaction of the recepient of the threat & of other listeners
• whether the threat was conditional
• whether the threat was communicated directly to its victim
• whether the maker of the threat had made similar statements to the victim in the past
• whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence
• (no factor is predominant)

• Public property
• Public Schools
• Public Employment
• Particular communications media

If traditional public forum, free speech rights are at their zenith, subject to the the strictest scrutiny. (i.e. public street, public park, etc.)

Tinker:

• can only sensor if school officials can reasonably forecast that it will "materially disrupt classwork or involves substantial disorder of invasion of the rights of others

Fraser:

• school regulate speech if vulgar, lewd, or plainly offensive

Hazelwood:

• if student speech involves a school-sponsored expressive activities so long as their actions are reasonably related to pedagogical (teaching) concerns

Morse:

• can restrict student expression that school officials reasonably regard as promoting illegal drug use

General test:

• who is the intended audience?
• did it create some sort of disruption at school?

What are the test applied for public employment?

Garcetti:

• statements made purusant to official job duties, such that employees were not speaking as citizens for 1A purposes

Pickering/Connick:

• was employee speaking on matter of public concern?
• balancing prong: employee's free-speech interests balanced against the employers efficiency interests

Mt. Healthy:

• was the employee's 1st Amendment protected activity a substantial or motivating factor in the adverse employment action
• would the employee have reached the same decision even if the employee had not engaged in constitutionally protected conduct.

Does the employees speech:

• impair discipline or harmony among co-workers
• detrimentally impact close working relationships for which personal loyalty & confidence are necessary
• interfere with the normal operation of the employer's business
• relate to any matter of political, social, or other concern to the community

Did government adopt regulation of speech because of disagreement w/message it conveys

Regulation must:

• advance a compelling governmental interest
• be very narrowly tailored (least restrictive means)

Regulation must:

• advance a substantial government interest
• be narrowly drawn
• provide ample alternative measures of communication

• If the purpose/aim of regulation is to silence expression
• if the regulation is justified by referencing the content of regulated speech

• converts content-based laws into content neutral
• waters down level of judicial review in application of intermediate scrutiny
• lowers level of evidence necessary to support speech restrictions

if it is substantially broad

(courts use this as a last resort)

a law is vague if persons of common intelligence must necessarily guess at its meanings and differ as to its application

(federal court has to consider narrowing construction offered by state or state court)

Regulations must limit:

• the licensor's discretion in issuing permit or fee
• the time frame for issuing a license

• Lemon test
• Endorsement test
• Coercion test
• Neutrality test
• History & Tradition test

• the establishment of a national religion by congress
• the preference of one religion over another
• the support of a religous idea with no identifiable secular purpose

• The governments action must have a secular legislative purpose
• The governments action must not have the primary effect of either advancing or inhibiting religion
• The governments action must not result in excessive government entanglement with religion

• Subjective (purpose)- was this practice intended to endorse or disapprove of religion?
• Objective (effect)-did the practice actually convey the message that religion was being endorsed or disapproved? 

• government cannot pressure people into or away from religion
• peer pressure counts

When is a regulation constitutionally overbroad?

• when the law is written so broadly that it punish protected speech
• (the concern is possible chilling effects & selective enforcement)

Brandenburg: When advocacy of the use of force or of law is:

• directed to inciting or producing imminent lawless action
• (speech has to be advocating...meaning directed at a group of individuals or persons)
• (speech cant just advocate illegal action at some indefinite future time)
• (individualized solicitation to commit a crime ["kill my wife for me"] is generally thought to be unprotected, even if harm isnt imminent or likely

• speech intended to incite an immediate breach of the peace...
• is directed to a person and likely to be seen as a direct personal insult
• perhaps only applies to epithets or vulgarities

Miller:

• average person, contermporary community standard, finds work on a whole appeals to prurient interest (lustful thoughts)
• work depicts or describes, in a patently offensive way, sexual conduct speficially defined by the applicable state law, and
• the work as a whole lacks, serious literary, artistic, polictial or scientific value...

• Would a reasonable person believe that an objective, reasonable recipient of the statement would interpret the language to constitute a threat?
• Would a reasonable recipient interpret the material as a serious threat of harm?

• the reaction of the recipient and other listeners;
• whether the threat was conditional;
• whether the threat as communicated directly to the recipient
• whether the maker of the statment had made similar statements in the past;
• whether the victim had reason to believe that the maker of the statement had a propensity to engage in violence

• a law that makes it a crime to insult a police officer
• a law that prohibits movies that contain any nudity
• a law that prohibits literary works by ex-felons that discuss their past crimes

• A law that prohibits all demonstrators after 5pm
• A law that bans anyone from sleeping on federal mermorial grounds
• A law that bans distribution of any materials in public park

• if the message of the promotional campaign is effectively controlled by the federal government itself
• (factors: central purpose of program; editorial control; identity of the LITERAL speaker; who bears the ultimate responsibility for the content of the speech)