For licencing requriements that are content-based, use S.S.

For licensing requirements that are content-neutral, must have all 3: (1) Important Reason (1) Clear Criteria (2) Adequate Procedures.

- The principle that the government cannot condition a benefit on the requirement that a person forgo a constitutional right.

- Why it would be upheld: Constitutional Condition: Close relationship b/t the condition and the benefit; The burden is de minims.

- Speiser v. Randall: Property tax-break w/ a condition - SC struck down the condition b/c there was not a close relationship between the condition and the benefit.

- Rust v. Sullivan: SC upheld federal regulations prohibiting federally funded family planning programs from counseling or giving info about abortion. 

- Something less than an outright penalty can constitute infringement.

- Govt pressure, except prohibition, is unconstitutional if it substantially burdens the speaker.

- Simply requiring a label doesn’t constitute sufficient pressure to be an infringement.

- Aggressive reaching out pressure to stop speaking and referral to executive for prosecution --> Labeling + is enough pressure to constitute infringement.

- Bantam Books, Inc. v. Sullivan: Unconstitutional for state to encourage morality in youth by identifying "objectionable" books b/c they were unsuitable for children and to write to sellers urging them to stop having them available.

Unprotected:

- Incitement of Illegal Activity

- Fighting Words

- Obscenity

- Child Pornography

(1) Clear & Present Danger Test I

(2) Reasonableness Test 

(3) Clear & Present Danger Test II (Risk Formula Approach)

(4) Brandenburg Test 

3 components: If met, the constitutionality of a law and its application will be upheld.  (1) Immanency / Immediacy that act would happen, if at all; (2) Likelihood that the act would lead to violence; (3) Seriousness repercussions / weight & gravity of the harm? 

Schenck v. U.S.

Frohwerk v. U.S.

Debs v. U.S.

Abrams v. U.S.

The government can punish speech that incites unlawful activity so long as it is reasonable. Must be legitimate state interest and done through reasonable means.

Gitlow v. New York

Whitney v. California 

Seriousness of the harm multiplied by the likelihood of the harm.

Dennis v. U.S. 

Speech is incitement if 3 conditions are met: (1) The speaker must intend to incite; (2) Imminent lawless action; (3) Imminent lawless action is likely. 

Brandenburg v. Ohio

Speech that is directed at another and likely to provoke a violent response (unprotected by the 1st Amendment).

Chaplinsky v. New Hampshire

Gooding v. Wilson

When an individual's speech (1) provokes an imminent danger of uncontrolled violence by onlookers of the speaker, (2) Crowd control is impossible, and (3) Speaker ignores police. If all 3, the exercise of 1st Amendment rights is outweighed by the public interest in order.

Feiner v. New York

- Speech that is directed at a particular person or group based on their characteristics and that (1) Degrades, (2) Intimidates, and (3) Incites violence. 

- This may be a somewhat protected area of speech; May have some redeeming social value.

- Intent issue: IF a statute makes an act w/ intent to intimidate another a criminal act --> it will not PER SE be unconstitutional; IF the statute makes the act the intent to intimated --> it will violate the 1st Amend.

MILLER TEST: What is “obscene” is a Q of fact for the jury: 

(1) Does the work taken as a whole appeal to the prurient interest? How do we know? Use a local community standard (Jurors in those districts are assess what the local community standard is); AND

(2) Is the work patently offensive as defined by statute? Defined by State statute, it either: tries to define what counts as patently offensive, or just list the things that are patently offensive. AND

(3) Does the work taken as a while lack serious redeeming social value? Use national standard.

 (from Miller v. California)

Material that depicts children in sexual acts is NOT protected by the 1st Amendment.

The state may regulate child pornography if it: (1) Is a valid depiction; (2) Of sexual conduct specifically described by the states; (3) By children below a specific age; and (4) Is made w/ some scienter. (New York v. Ferber)

A category of sexual speech that doesn’t meet the test for obscenity, and thus is protected by the 1st Amendment, but is deemed to be speech of low value, and thus the government has latitude to regulate such expression. Receives I.S. "without bite."

- SC has upheld the ability of local governments to use zoning ordinances to regulate the location of adult bookstores and movie theatres. (Young v. American Mini Theatres, Inc)

- Another example of SC's treatment of sexually oriented speech as being of “low value” is its willingness to allow the government to prohibit nude dancing. (City of Erie v. Pap’s A.M.)

Use the O'Brien Test! If the conduct is expressed per the Spence test, use this test to see if it is constitutional to restrict it. A govt regulation is sufficiently justified:

(1) If it is win the constitutional power of the govt;

(2) If it furthers an important or substantial governmental interest (narrowly tailored);

(3) If the governmental interest is unrelated to the suppression of free expression; and

(4) If the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest (ample alternative channels). 

A communication which:

(1) Does no more than propose a commercial transaction or is an advertisement; OR

(2) Is an advertisement, References specific products, and is mailed for economic motivations. 

(VA State Board of Pharmacy v. VA Citizens Consumer Council, Inc. – SC suggested that the usual prohibition on prior restraints may not apply to commercial speech)

Hudson Test: I.S. - Truthful commercial speech concerning a lawful activity has an informational function and cannot be prohibited unless:

- The restriction is truthful and conerns lawful activities;

- A substantial govt interest is served by the restriction;

- The govt's motive is to directly advance the governmental interest; AND

- The restriction is no more extensive than necessary to achieve that interest.  

(Central Hudson Gas & Electric Corp. v. Public Service Commn. of NY)

Spence Test: Speech/conduct is communicative speech if:

(1) The speech/conduct was intended to communicate a particularized message; AND  

(2) There is a substantial likelihood that the audience would understand that message. 

(Spence v. Washington - A prohibition on displaying the flag w/ the peace symbol attached violates the 1st Amend. A person may not be punished for “failing to show proper respect for our nat’l anthem.”)

If speech/conduct is found to be communicative under the Spence Test, then how do you determine if regulation of that speech/conduct is jusified?

O’Brien Test: A govt regulation is sufficiently justified:

(1) If it is win the constitutional power of the govt;

(2) If it furthers an important or substantial governmental interest (narrowly tailored);

(3) If the governmental interest is unrelated to the suppression of free expression; and

(4) If the incidental restriction on alleged 1st Amend freedoms is no greater than is essential to the furtherance of that interest (ample alternative channels). 

(U.S. v. O’Brien – A prohibition on draft card burning was upheld. The govt’s interest was not simply to suppress speech aspects of the conduct; it had an independent interest of requiring possession of draft cards to facilitate the smooth functioning of the draft system.)

Public property that has historically/traditionally associated w/ the exercise of 1st Amend rights. Ex: Streets, sidewalks, and parks (Hague v. Committee for Industrial Organization). The government has a duty to pemit speech in those places.

SS for Content-Based restrictions of speech; I.S. for Content-Neutral Time, Place, and Manner restrictions of speech

Designated - used to be closed to speech, now open to speech.

Limited - only open to local community groups.

A regulation in which the government imposes on the occasion, location, and type of individual expression. 

In order for such regulations to be constitutional, they must: (1) be content-neutral; (2) be narrowly tailored; (3) serve a significant governemtal interest; AND (4) leave open ample alternative forums or channels of communication for protected expression.

(Ward v. Rock Against Racism)

Note: even if a regulation meets the TPM requirements, it may still be invalid if it is overbroad or vague!!

1) Tradition - Has this space been traditionally been open to expressive activities?

2) Designation - Has this space been designated by the government to permit expressive activities?

3) Compatibility - Is the speech compatible to the property that is at issue?

Tinker Test: In order for the State in the person of school officials to justify prohibition of a particular expression of opinion:

(1) It must be able to show that its action was caused by something more than a mere desire to avoid the discomfort; AND

(2) Unpleasantness that always accompany an unpopular viewpoint. 

(Tinker v. Des Moines Independent Community School District  - Public schools cannot restrict students' expression, unless it would "materially and substantially interfere" w/ appropriate school discipline)