Speech Involved?

Was there an intent to convey a particularized message? 

AND

Was the likelihood great that the message would be understood by those who viewed it

If expressive message has non-speech elements, regulation must:

-Be within constitutional power of gov't to enact

-Further an important gov't interest

-Interest must be unrelated to suppression of speech

-Prohibit no more speech than is essential to further that interest

(O'Brien--not applied a lot)

If speech involved, and no conduct, do categorical balancing:

Incitement:                                                                  -Advocacy directed to incite or produce imminent lawless action

-Advocacy likely to incite or produce imminent lawless action

Fighting Words:                                                            

-Their very utterance inflicts injury or tends to incite immediate breach of peace

-Can't be content based                                                    

Obscenity Miller Test:                                                  

-Would average person applying contemporary community standards, find that the work taken as a whole, appeals to prurient interests?

-Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law, AND

-Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

True Threats:                                                             

#1...-Would a reasonable person believe that an objective, reasonable recipient of the state

ment would interpret the language to constitute a threat?

-Would a reasonable recipient interpret the material as a serious threat of harm?

#2...Watt Factors:

Comments made during political debate

Conditional nature of threat

Context

#3...V.A. v. Black

Where speaker means to express a serious expression of an intent to commit an act of unlawful violence:

-Doesnt need to actually intend to carry out threat

-Intimidation is threat...intent is placing victim in fear of harm

Dinwiddie Factors (school context):

-Reaction of recipient, and other listeners

-Was threat conditional?  Made directly to victim?

-Whether maker had made similar threats in past?

-Whether victim could believe maker had propensity for violence

If no categories are implicated, look to special settings:

Public Schools:

-Tinker...school cant censor student expression unless it can reasonably forecast that it will materially disrupt classwork or involves substantial disorder of invasion of rights of others

Fraser...school can regulate speech if vulgar, lewd, or offensive

Hazelwood..Educators can regulate speech in school-sponsored activity, if actions are reasonably related to pedagogical concern

Morse/Jesus..."promoting drug speech exception"--schools can restrict student expression reasonably regarded as promoting drug use

Public Employment:

Garcetti: were statements made pursuant to official job duties?

Pickering: -Was employee speaking on matter of public concern?

Must be public speech to receive 1A protection!!

Employee's free speech vs. Employer's efficiency interests:

-impair discipline or harmony among co-workers?

-detrimentally impact close working relationships where loyalty and confidence are necessary?

-interfere with normal operation of employer's business?

-relate to any matter of political, social, or other concern to community?

Mt. Healthy: Whether employee's 1A protected activity was a substantial or motivating factor in adverse employment action

-Whether the employer would have reached the same decision even if the employee had not engaged in constitutionally protected conduct.

If no special setting, conduct content-discrimination analysis:

Did gov't adopt regulation of speech because of disagreement w/ message it conveys?

-If content based--strict scrutiny.  Regulation must:

-advance a compelling gov't interest

-be narrowly tailored (least restrictive means test)

-If content-netural, apply intermediate scrutiny.  Reg. must:

-advance a substantial gov't interest

-be narrowly drawn

-provide ample alternative measures of communication

Does legal fiction of secondary effects apply?

-Is purpose/aim of regulation to silence expression?

-Is reg. justified w/ reference to content of regulated speech?

If yes, then secondary effects dont apply

If no, secondary effects might apply

-city not required to produce independent studies or evidence that show harmful secondary effects so long as city reasonably believes the evidence of secondary effects is relevant to their problem.

-Listener's reactions to speech are not valid secondary effects

Impact of secondary effects:

-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

Does law suffer from regulatory flaws?

Overbreadth-dont want to punish protected speech:

-must be substantial, and used as last resort

Vagueness

-if persons of common intellect must necessarily guess at its meaning & differ as to its application

-Fed ct must consider narrowing construction offered by state

Prior restraint

-Licensing systems: regulations must limit-

-licensor's discretion in issuing permit or fee

-time frame for issuing a license

-Speech restrictive injunctions:

-subject to strict scrutiny

-really can never do this, unless it fits narrow exception

Unprotected if Incitement:

Former law: clear and present danger (Schenck)

Current law: Brandenburg-State cannot forbid or proscribe advocacy of use of force except where such advocacy is (1)directed to inciting or producing imminent lawless action and (2)is likely to incite or product such action.

*Advocacy of illegal action must be likely to incite action within close temporal proximity and incitement must be definitive(Hess)

*Flaws--may not penalize criminal conduct to the extent it should be...shouldnt HAVE to be restricted to imminent--mere fact that D is culpable of accomplishing crimes is enough.

Theories:

*Holmes in Abrams: unpopular ideas should have opportunity to compete in marketplace of ideas

Brandeis in Whitney: time to answer test--no speech can be dangerous if there is full opportunity for discussion.  Must define nature of danger.  Fear of unpopular ideas are not enough.

Con: no value in falsities; doesnt materially advance society's interest in wide open debate.  No social value in the lewd and profane.  ie: murder

Unprotected if Fighting Words

State can punish expression because of its offensive nature that leads it to provoke a reasonable person to respond violently.

--Is an enactment drawn narrowly enough to ensure that it doesnt reach protected expression

-Hostile response is the responsibility of the speaker/audience

*Chaplinsky--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

--Does not add to exposition of ideas, and are of such slight social value, as there is almost no benefit derived from them

*Cohen--fighting words should be confined to direct personal insult.

R.A.V.--court cant regulate use based on hostility--or favoritism-towards the underlying message expressed.

Limitations:

-Epithets or vulgarities

Policy Reasons:

-Must be less provoking manner to get idea across; doesnt really restrain speech

--Court rather decide cases on basis of vagueness and breadth

Unprotected if Obscene

Definitely in limited class that does not deserve protection, but hard to define what obscenity is.

Roth: **Would average person, applying contemporary community standards, finds that the dominant theme of the material taken as a whole appeals to prurient interests. 

Prurient = material having tendency to excite lustful thoughts and having morbid or lascivious longings.

Stanley: PPL have right to receive info and ideas

Miller 3 part test:

-average person applying contemporary community standards find work, taken as whole, appeals to prurientness

-whether work depicts in a patently offensive way, sexual conduct defined by state law

-whether work lacks serious literary, artistic, political, or scientific value

Cons:

-fed gov't has no right to bar material that may lead to certain thoughts

-to be punishable, must have relation to action that can be penalized by gov't...but dont punish everday thoughts

-No link between obscene literature and deviations from community standards

True Threats

Basic:

Would a reasonable person believe that an objective, reasonable recipient of the statement interpret the language to constitute a threat?

Would a reasonable recipient intrepret the material as a serious threat of harm?

Watts Factors:

-comments made during a political debate

-conditional nature of threat

-context (listener's reaction)

*Does not protect against violence (Mitchell)

VA. Black:

TT occurs when speaker means to communicate a serious expression of an intent to commit an act of violence against a particular person or group of ppl.

Doesnt have to be real threat--ppl are protected from fear

Lower Court:

TT: where a reasonable person would foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily harm or take life of another.

Dinwiddie Factors (None are predominant):

-Reaction of recipient of threat and other listeners

-Was threat conditional

-Was threat communicated directly to victim

-Had maker of threat made similar statements to victim in past

-Victim have reason to believe maker had propensity for violence

Speech in Public Schools

Tinker: School cant censor student expression unless it can reasonably forecast that it will "materially disrupt classwork or involvs substantial disorder of invasion of the rights of others"

-apprehension of disturbance is not enough

-must show that actions was caused by more than want to avoid discomfort that accompanies unpopular viewpoint.

Fraser: School can regulate speech-vulgar, lewd, *offensive.

Hazelwood: Schools dont offend 1A by exercising editorial control over style and content of student speech in school-sponsored activities, if actions are reasonably related to pedagogical concerns.

Morse--schools can regulate student speech that they reasonably believes promotes illegal drug use.

Ponce--expands Morse to violent-themed material as well

Off-campus analysis:

Court strains to find school jx

*Look for overbreadth, vagueness

*First apply Dinwiddie (determine if true threat), then Tinker

Public Employee Speech

Pickering/Connick: Public employees dont lose their right to speak out on matters of public concern, esp when no impact on daily routine.  If speech was private concern or grievance-no 1A protection.  Must cross public concern.

Public concern: matter of political, social, etc.

Balancing Act: employee's free speech interests vs. employer's efficiency interests.  Does the employee speech:

-Impair discipline or harmony among co-workers?

-Detrimentally impact close working relationships where loyalty and confidence are necessary?

-Interfere with normal operation of employer's business?

Mt. Healthy: was the employee's 1A activity a substantial factor in the adverse employment action; and whether the employer would have reached the same decision without conduct.

Garcetti:

When a public employee makes statements pursuant to their official duties, the employees are not speaking as citizens for 1A purpose, and Constitution does not insulate their communications from employer discipline.

(Does not infringe on rights employee would have as private citizen).

Garcetti Cont.

Public Employee Retaliation...Must establish to put burden on employer to show he would have reached same decision:

-he suffered an adverse employment action

-his speech touched on matter of public concern

-free speech interests trump employer's efficiency interests

-1A protected speech was substantial factor in employer's decision to take adverse employment action.

*If employee goes outside chain of command-less likely to be pursuant to offiial job duties.

Official Job Duty:

-Focus on duties an employee actually is expected to perform

Cons:

-No recourse for employee fired for reporting fellow employee

-hard to determine when employee speaks pursuant to official duty.

Analysis:

Garcetti...a)was it protected citizen speech, or b)unprotected job-related employee speech?, then Connick/Pickering. Then Mt. Healthy.

Content Discrimination:

If speech is involved, and no unprotected category, or special setting, look at content neutrality...

If content based, apply strict scrutiny (special distate for viewpoint discrimination):

-regulation must advance a compelling gov't interest

-regulation must be narrowly tailored

Ex: illegal to insult police officer, prohibits movies with nudity

Viewpoint--egregious form, targets certain view

If content neutral, apply intermediate scrutiny:

-advance a substantial gov't interest

-be narrowly drawn

-provide ample alternative measures of communication.

Ex: law prohibits demonstrations after 5pm, bans distribution of any materials in public park.

*Regulation is exemplified by laws that manages time, place, or manner concerns in public forum, punish conduct that may be coupled with speech, or impact expression as secondary, rather than primary consequence

*Has gov't adopted regulation because of disagreement with the message it conveys.

Secondary Effects
*Quasi exception to content based/neutral

*Applies where regulatory aim is unrelated to the speech's communicative impact.

Ex: Regulation that porn store cant be within 1000 ft of school--aimed at preventing deterioration, silencing expression is a secondary effect.

*Impact on 1A is incidental and minimal, restriction is not on content (Young)

*City not required to produce independent studies of evidence of secondary effects if city reasonably believes it will happen to them as it did in other cities.

Law is content-neutral as its justified w/o reference to underlying expression.

Listener's reaction to speech are not a valid secondary effect.  (Boos)

-Gov't restrictions on public nudity should be evaluated under O'Brien for content-neutral restrictions on symbolic speech.

Impact of Secondary Effects Doctrine:

converts content based laws into content neutral

waters down level of judicial review in application of intermediate scrutiny

lowes level of evidence necessary to support speech restrictions

Ex: increased crime, prostitution, privacy, visual clutter, ingress/egress, noise, security, vitality, id unfit judges, etc.

Overbreadth, Vagueness, Prior Restraint

Prior Restraint

-Does it regulate the licensor's discretion (cant be unbridled)

-Does it regulate time frame (must have a limit)

Overbroad

-Laws written so broadly that they punish protected speech?

-Worry about possible chilling effects and selective enforcement

Vague

-Laws written so ppl dont know when expressive conduct violates law--no fair warning--arbitrary/discriminatory enforcement.

Saving an overbroad or vague statute

-possible through narrowing interpretation thus saving the law by reducing its overbreadth or vagueness.  Power given by State, not court.

-Some states offer a severability provision, thus striking out invalid portions of certain statutes.

Overbreadth

-used to strike down regulations on speech that are worded in a way that protected speech is also vulnerable to punishment

-If too broad, officials will have more discretion to engage in selective enforcement

Procedural Aspects

-permits facial as opposed to as-applied challenges

-courts can sometimes save laws w/ narrowing constructions

-must be substantial overbreadth

*Can challenge law, even if it hasnt restricted you--everyone has standing

Vagueness

-meaning of statute should be ascertainable:

to provide fair notice of its prohibitions to ppl who wish to engage in protected speech activities &

-to ensure that the statute will not be subject to arbitrary enforcement.

*Law is vague if someone of common intellect must guess at its meaning and differ as to its application.

Prior Restraints

(1)speech-restrictive injunctions, and

(2)licensing systems that require a permit or fee as a pre-req to engaging in expressive activity.

*Restricts circulation of ideas before dissemination of those ideas

*Has heavy presumption against its constitutional validity automatically

Establishment Clause--Pre Lemon

-State must be neutral w/ religious groups, but not their adversary.  Should not handicap them, nor favor them.

-When power, prestige, and financial support of gov't is placed behind certain religion, the indirect coercive pressure upon religious minorities to conform to the prevailing official approved religion is plain.

*Must have secular legislative purpose and primary effect that neither advances nor inhibits religion-no excessive entanglement

Lemon Test

-Secular Purpose

-Primary effects

*whether gov't aid results in gov't indoctrination

*whether recipients of gov't aid are defined by reference to religion

*whether aid creates excessive gov't entanglement w/ religion

History and Tradition Test

-may seem religious, but secularized over years

Establishment Clause..Cont

Endorsement Test

Subjective Purpose: was this practice intended to endorse or disapprove of religion?

Objective Effect: did practice actually convey message that religion was being endorsed or disapprove?

Coercion Test

Gov't cant pressure ppl into or away from religion

Peer pressure counts

Neutrality Test

*Allows private choice

*Where a gov't aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens, who in turn, direct gov't aid to religious schools, wholly as a result of their own genuine and independent private choice, program is not readily subject to challenge under the EC.

*Most of court hates Lemon, although still PRIMARY--too flexible, apply Endorsement as well

Coercion--only in context of small children--hard to apply

Gov't Speech

With exception of establishment clause, gov't is free re: speech

It MAY engage in viewpoint discrimination

*Gov't can pay private parties to communicate the gov't own message, and condition the payment on speech being communicated--must be gov't message.

*Cant engage in viewpoint discrimination to encourage private speech.

*If gov't is subsidizing:

-it may control way subsidies are used and restrict certain speech (if used to fund violence).

-Cant impose conditions on how recipients spend $ from other sources.

*Cant force others to engage in certain speech.

What is gov't speech?

-Central purpose of program is to promote gov't idea

-Degree of editorial control excercised by gov't or private entity over content of speech (who has final say)

-ID of literal speaker

-Who bears ultimate responsibility for content