1. For public and Overt Speech, can punish advocacy IF:

a. likelihood of imminent illegal conduct, and

b. speech is directed to causing imminent illegal conduct

Clandestine, Covert Speech or Conspiracy Inciting Illegal Activity(Dennis Test)

Sliding Scale between

a. Probability of the harm and

b. Gravity of the harm

Must be:

a) active member in group

b) know of group's criminal activities

c) specific intent to further those criminal objectives

Test for Vagueness

Test: A reasonable person cannot tell what speech is forbidden and what is permitted

Notes:

a) laws subsidizing speech more likely to be permissible if vague (Finley)

Test: A law is overbroad if it regulates substantially more speech than constitution permits.

A) substantial overbreadth established by comparing valid to invalid applications

B) if law regulates conduct, less likely to be overbroad b/c valid applications

C) Balancing: also consider a) how serious is harm if state can't regulate valid applications, b) how easy is it to narrow the law, c) how important is the chilled speech

D) Does not apply to commercial speech

Def: a) Administrative rule requiring license or permit before one may engage in expression, or b) administrative or judicial order forbidding communications issued before communication occurs

Not a prior restraint: Orders that restrict permissibly restricted speech which you know exact parameters of limitations

Constitutionality: High presumption of unconstitutionality.  Even higher presumption if a judicial order since apply to specific individuals.

Valid where:

1) there is an important reason for licensing

2) the regulation is narrowly tailored to that reason

c) there are clear standards leaving almost no discretion to gov't

d) there are procedural safeguards

Public figure =

a) where public official and public has strong interest in what he is doing

b) those who have "general fame and notoriety in community"

Limited Public Figure =

a) those who have voluntarily injected selves within a particular controversy, a public figure for that controversy

b) involuntary public figures directly affected by actions of public officials (narrow class)

Standard for Public Figures:

a) PFs may not recover damages for defamation relating to their official conduct, unless he proves the statement was made with actual malice. 

b) Malice - knowledge or reckless disregard that statement is false.

c) Proof is convincing clarity

Damages:

no damages unless actual malice

Private individual = any one else, even a well known lawyer w/ case attracting substantial publicity

Standard: States not forbidden from applying a simple negligence standard, or recklessness but may not impose strict liability.

Damages:  If only negligence shown, P may not recover presumed or punitive damages, there must be actual injury.

Definition: Cts usually look to content, form, and context to determine whether the issue is not of public concern.

Standard: Ds may be liable even without a showing of negligence, and may be able to recover presumed/punitive damages where reckless disregard.

Cannot punish for printing of truthful information unless:

a) lawfully obtained (even if publisher knew of prior unlawful obtainment)

b) truthful information

c) about matter of public interest

d) unless it surives strict scrutiny (state interest of highest order)

Miller Test for Obscenity:

1) average person + applying contemporary community standards + finds that work appeals to prurient interest (prurient interest = sex for sex's sake)

2) show/description is patently offensive (i.e. representations of sex, normal or perverted, masturbation, excretory functions

3) Conduct shown/descripbed is specifically mentioned in law that bans obscenity

4) Whole work lacks serious literary/artistic/political/scientific value

IF Obscene, then gov't may regulate.

If not obscene, then pornography, and must pass strict scrutiny.

If obscene, must only pass rational basis test.

1) May be banned by gov't even if not obscene.

Possibly a defense if artistic value.

2) But you may not indiscriminately bar child porn which doesn't depict real children, or has adults posing as children.  Subject to strict scrutiny.

Fighting Words

Definition:

a) words which by their very utterance inflict injury (psychological trauma)

or b) words which tend to incite immediate breach of the peace (there must be clear and present dantesr to public peace and order)

Analyze intent of speaker or effect on listener.

a) Intent may be to persuade or intimidate.

b) Effect on listener based on whether it would be perceived as an insult, or whether they could avert eyes

May not be vague, overbroad, content-based

Def: A serious expression of an intent to commit an act of unlawful violence towards an individual.  Must be a directed threat against a particular individual.

Intent: Speaker doesn't need ot intent to carry out threat, just intend to intimidate.

Another factor: reasonably likely that listener would perceive as threat?

Regulation of Commercial Speech:

General rule: commercial speech subject to 1st amd protection

a) If the advertisement is false or deceptive, or if it incites (not just advertises) illegal activities, not subject to 1st amd protection (stop).

b) If not, is the gov't restriction justified by substantial gov't interest?

c) Is the regulation of speech no more extensive than necessary? (i.e. substantial relationship between law and achieving law's objective + narrowly tailored to achieve goal).

Def: Traditional public forum = gov't property that has traditionally/historically been available for free expression of ideas.

When can you regulate in public forum?

a)If content neutral,  can regulate if:

1) substantial gov't interest

2) ordinance narrowly tailored

3) ample alternatives for speech

Note --> if injunction must burden no more speech than necessary

B) If not content neutral,

1) view point discriminatory --> strict scrutiny

2) topic discriminatory --> strict scrutiny

BUT if directed at individual's home, you can regulate (sanctity of home).

Def: property opened up by gov't for certain class of persons speech, for a certain topic, or for general use.

General Public forum: opened up for use by all.

Limited public forum: created only for certain groups or discussion of certain subjects.

Rule:

OK to regulate where:

a) viewpoint neutral

b) reasonably consistent with gov't's interest in preserving property for non-speech uses (rational basis)

BUT cannot regulate if area is multipurpose, one purpose is speech, and 1st amend activity is compatible w/ locale, and it wouldn't interfere w/ rest of property.

Def: All other gov't property not used by gov't itself for speaking.  OR where gov't allows selective access for just a few individuals, but not general access.

Test: Rational basis (consistent w/ gov't's legitimate objective). 

Def: If purpose of property is for gov't to speak on it (or through gov't agents).

Rule: Anything goes, even viewpoint discrimination.

Test:

1) If content neutral:intermediate scrutiny

a) Significant gov't interest

b) Means substantially related to interest

c) ample alternative means of communication

A) If message regulated is part of curriculum:

i) Educators permitted to exercise control to ensure

a) participants learn what curriculum designed to teach, b) students not exposed to materials inappropriate for maturity level, c) individual views of speaker not erroneously attributed to school.

B) General Rule: Balance students rights w' school's inculcatory function.

 i) Can restrict speech if:

a) actual/forseeable substantial disruption/intrusion on rights of other students

b) material interference with mission of school

c) may prohibit indecent pseech to create boundaries of socially acceptable behavior

d) may prohibit offensive school sponsored speech

e) May not prohibit if reason is discomfort w/ message.

Regulation of materials available to students:

a) Permissible as long as not based on suppression of particular ideas.

b) or suppression in a narrowly partisan fashion.

 c) especially bad if removal of books/materials in partisan, idea-censoring fashion.

1) Gov't As Speaker:

a) If gov't itself is speaker, it has high discretion to send even viewpoint discriminatory message.

b) EXCEPT in case of

i) Public Forums

ii) Universities

iii) Certain Professional Relationships

b) If gov't is speaking through private parties, constitutional as long as:

i) it hasn't opened a limited public forum and then discriminated on viewpoint

ii) it is not conditioning receipt of funds on complete silence of private parties regarding a certain issue outside of realm of funds.

Symbolic Speech:

a) First Inquiry: Is the gov't restricting symbolic expression due to its communicative content?

If yes, apply strict scrutiny.

b) Is gov't regulating conduct for reason unrelated to conduct's expressive content?

If yes, apply O'Brien test.

c) O'Brien Test: If gov't is regulating conduct with speech and nonspeech messages, constitutional if:

i) Gov't regulation w/in constitutional power of gov't

ii) gov't interest unrelated to suppression of free expression

iii) Incidental restriction on 1st amendment freedom no greater than essential to furtherance of that interest (doesn't have to be least restrictive manner)

Freedom of Association (General):

General right to freedom of association for such things as political advocacy, literary expression, religious worship, and others.

Rules on Boycotts:

1) There is a first amendment right to peaceful political boycotts.

2) But there is not a first amendment right to unfair trade practices, or violent boycots. 

Test:

1) Is it expressive activity?

a) any organization engaging in expression and the regulation affects expression

2) What is your expressive message?

a) anything the group says during litigation

3) Does the restriction significantly interfere with the group's message?

a) high discretion for what group says interferes

4) Justification to intrude?

Right not to Speak

Individuals have the right not to speak where:

a) it attaches a particular message to a particular individual, and puts the message on display,

b) as opposed to a general gov't speech subsidy.

Rule:

a) Gov't may compell if a) area is open to public use, not just P's personal use, b) speaker would not be easily identified with speech, and c) speech could be counteracted by other speech.

b) Gov't may not compell if a) area less open to public, b) speakers will be compelled to associate w/ a specific viewpoint with which they disagree, c) less means to dissasociate from/counteract viewpoint.

Other Factors to Consider:

i) broadcast v. print media

ii) will speech be identified with P?

iii) is regulation viewpoint discriminatory?

iv) does person lose all/part of own speech right due to limited space?

v) Does person object to content of speech?

vi) how intrusive is it?

vii) has person previously opened up area to other speech?

Limited Right to Reject Compelled Subsidy to Speech:

Rules:

a) Gov't may compel subsidy to speech if part of a broader economic scheme

i) even if related to targetted taxes, not just general taxes

b) But gov't cannot fund speech with one viewpoint using special compelled subsidies from a designated class of persons if 1 of them disagrees.

c) If message is expressed by a private entity, may compell subsidy

i) if germane to the regulatory interests justifying compelled membership

ii) but cannot compel subsidy of unrelated ideological messages/purposes.

If gov't facially discriminating against religion, that violates establishment clause. 

Test: A regulation re: religion valid if:

a) Law has a secular purpose

(purpose must be communicated, not a hidden motivation)

b) Principal/primary effect of law neither advances nor inhibits religion

c) It does nto foster excessive gov't entanglement with religion. 

Note --> possibly going out of use

Would a reasonable person feel that gov't was endorsing religion?

If yes, may not be used.

Test (note --> also use Lemon Test)

a) would a reaosnable observer seeing the display conclude that gov't was endorsing religion in general, or endorsing a particular religion?

IF yes, violates 1st amd.

If no, doesn't violate.

b) Note that a question of fact, depending on:

a) Context:

i) display of other nonreligious symbols nearby

ii) existence of sign indicating display furnished by private parties w/o gov't approval

iii) evidence that religious material provided for historical not religious purpose

b) Gov't intent/motive behind display

i) if ct thinks motive to endorse/promote religion, likely unconstitutional