FREEDOM OF SPEECH Background: Congress shall make no law abridging the freedom of speech or the press.

. Political speech elevated to the highest protection by the court under the First Amendment. Low-level speech: i.e. commercial speech (advertising), obscenity. This is less protected, but not entirely unprotected. Freedom of speech covers all kinds of expressive speechterm of art used to describe something like flag burning. If you intend to communicate something with an action and people would tend to understand that youre communicating it, it is understood as expressive speech. The courts have sometimes drawn distinctions b/w pure speech and symbolic speech. st Prior restraint on speech such as censorship is about as reliable of a wrong as you can get to under 1 A. jurisprudence. After the fact, you can be punished for libel or other criminal consequences of speech, but courts have been very suspicious of prior restraints and typically the govt loses. There is some unprotected speech, which includes bribery, perjury, counseling to murder. These issues are uncontroversial and thus unlitigated. Other more controversial speech = incitement, fighting words, libel, obscenity, child pornography. These issues have been extensively litigated. Generally, they are unprotected, but there has been some shrinking of the boundaries surrounding these. Especially, statements that can be considered political. st Note: If something falls within the 1 Amendment, it is a fundamental right and receives strict scrutiny. Four Theories as to why Free Speech is a Fundamental Right: 1) Self Governance: It is necessary for the democratic process o People who stress this value say that public speech (on public issues effecting self government) must be immune to regulation, whereas private speech is entitled to less protection. Counterintuitive that public speech should be immune to regulation. Private speech = slander (becomes public when it involves a public figure) o Serves as a checking value on govt, allows people to influence govts choice of policies st o Political expression is at the core of the speech protected by the 1 Amendment o Can only exist of voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to be express. 2) Discovering Truth: Its a tool to advance knowledge and discovery of truth (the marketplace of ideas Holmes) o Mills On Liberty said that suppression of an opinion is wrong regardless of whether that opinion is truth. He said if the opinion is true and its suppressed, society is denied the truth. If it is false and its suppressed, society is denied the fuller understanding of the truth that comes with falsehoods. If the opinion is partially true and false, argued that society could only learn the whole truth by allowing the erring of human ideas. o Duke it out and will get to truth o Truth is more likely to emerge when there is a clash of ideas o Opponents say that it is wrong to assume that truth will trump over false hood o But even if this rationale is flawed, allowing the govt to decide what is true and right and suppress all else is much worse. o Best test of truth is power of thought to get itself accepted in competition of the market. o Remedy to be applied to offensive speech is more speech. 3) Advancing autonomy: Importance of Self-Expression o Good in and of itself need to protect expression for individual autonomy. o Emphasizes the intrinsic values of being able to express ourselves as human beings. o Essential aspect of personhood and autonomy, serves the needs of the human spiritwhich demands self-expression o Voluntary speech = Act of self-definition, the human spirit demands expression. o Critics of this view say that protecting freedom of speech for some can undermine the autonomy and self-fulfillment of others 4) Promoting tolerance and protecting unpopular speech (society is based on diversity) Based on the claim that tolerance is an essential and desirable value. Protecting distasteful speech is an act of tolerance. Tolerance should be a basic value in our society. o EXAM: Use the theories in the analysis of the issues. When the court draws lines and makes value judgments, these theories will be use to help draw the lines.

CASE Content-Based

Facts/Holding/Rule

Policy/Notes

Content-Based (includes subject matter & viewpoint based) = apply Strict Scrutiny: law must be narrowly tailored (least restrictive alternative) to achieve a compelling government interest (Boos v. Barry) Content-Neutral = e.g., time, place & manner test (Ward v. Rock Against Racism; Hill v. Colorado): (1) regulation must be content-neutral; (2) regulation must not burden more speech than necessary to serve a significant government interest; (3) regulation must leave open ample alternative channels for communication. Viewpoint Neutral: A law that regulates an entire topic or speech regardless of the opinions or views expressed about that topic is constitutional Two types of content neutral regulations: 1) Regulation that doesnt focus on the message, but rather is aimed at wider behavior and has only an incidental impact on speech (OBrien) 2) Regulation that is aimed at expression, but for reasons unrelated to what the message is. (i.e. regulations that keep protesters a certain distance away from abortion clinicsthis clearly implicates speech.) Intermediate Scrutiny (not same as EP analysis) required through TPM analysis: 1) Regulation must be content-neutral. To be content-neutral, it must be both viewpoint and subject-matter neutral. Stated differently, a content-neutral law focuses only on the time, place or manner of a communication 2) Regulation must not burden more speech than necessary to serve a significant government interest. 3) Regulation must leave open amble alternative channels for communication. Narrowly tailored here does not mean least restrictive alternative. Narrowly tailored means the law leaves open alternative channels of communication. (Ward v. Rock Against Racism) Depends on a variety of fact-driven considerations, including: o The nature of the speech activity being regulated; o The perceived significance of the governmental interest; o The scope of the restriction; o The availability of effective, but less restrictive alternatives; o The courts judgment as to the actual effectiveness of the restriction in advancing the preoffered interest. Content-Based: On its face, favors local NO Facts: Law requiring cable networks to carry local broadcasters was CN b/c the rule imposed burdens and conferred benefits w/o reference to content. broadcasting over cable programming, and Rule is that content-based regulations must meet SS, while content neutral only need to bc limited channels (competitive for space) meet IS. The SC found a fed. Law requiring cable companies to carry local broadcast SM based favoring local broadcasts stations content neutral b/c they were required to carry all stations regardless programming. over other kinds of info on cable Holding: Court held this was content neutral (not based on viewpoints or subject matter of Content-Neutral (Maj): Just saying broadcast or cable stations). Intermediate scrutiny: law passed b/c important interest, not provide local stations, not deciding what undue burden. SM has to be doesnt depend on Purpose of Law: Need access to local news/info; democracy/self-governance theory (need content of programming; as long as what is informed electorate through local news need diversity of viewpoints to inform the broadcast is left up to local broadcasters electorate); could also apply marketplace of ideas theory. neutral Dissent: SS is required when the government favors one form of speech to the detriment of Policy: Fear that government is trying to another. Argues that clearly is subject matter based, since otherwise no reason to enact regulation favoring broadcasters over cable programming suppress dissenting opinions. Test: Law that distinguishes favored from disfavored speech on the basis of ideas or views Speech should be regulated evenly are content based.

Content Neutral

Turner Broacasting v. FCC Do the "must carry" provisions of the CTCPCA violate the 1st Amendment?

Boos v. Barry If the statute is restricting free speech and is not content neutral, must is be narrowly tailored and necessary to achieve a compelling government interest?

YES

Hill et al. v. Colorado May a statute be upheld as a valid TPM regulation where it serves governmental interests that are significant and legitimate, the restrictions are content-neutral and the statute is narrowly tailored to serve such interests, leaving open ample alternative channels of communication?

YE S

Facts: prohibition on signs with critical message w/in 500 feet of SM-Based: Yes, its about foreign governing/policy embassy Viewpoint based: Could argue that if criticize Reasoning: Because it is not content-neutral, in order to pass government, cant do it (public odium) Compelling interest: Protecting a foreign diplomat from constitutional muster, it must be narrowly tailored and necessary to achieve a compelling governmental interest. possible insult is not a compelling interest Holding: content based b/c prohibits critical speech. But viewpoint Narrowly Tailored: No not going to treat foreign officials neutral b/c no distinction btwn criticisms or targets differently than US Citizens. First Amend needs Strict scrutiny (law fails) adequate breathing space: Dont want rules that have Test content based regulation: chilling effects on free speech Analysis: Is this a compelling state interest? Assuming yes, is this the least restrictive way of dealing with this problem? Facts: P challenged constitutionality of a CO statute The most comprehensive of rights and the right most valued by civilized men regulating speech-conduct within 100 feet of the entrance to is the right to be let alone. any health care facility. - Ct rejects P arg that statute is not content-neutral bc it applies to some Holding: Court held not content based b/c does not oral communication. Rejected since the statute here places no distinguish viewpoints, regulates only where speech can restrictions on and does not prohibit either a particular viewpoint or any occur, not what speech can occur subject-matter that may be discussed by a speaker. Furthermore, it is Intermediate scrutiny (compelling interest in protecting narrowly tailored to serve the states interest and leaves open ample health and safety, does not over burden since only alternative channels for communications. regulates distances). Burden to show narrowly tailored law - Ct also rejects Ps argument that the statute is overbroad because it is on government protects too many people in too many places, rather than simply Dissent: argues clearly content based since practical effect patients at medical facilities where confrontation speech has occurred. only on abortion protestors at clinics Rejected arg on the basis that it fails to identify a constitutional defect TPM Regulations: The government may regulate the TPM and that it misinterprets the overbreadth doctrine. The Ct maintains that of access to locations that may be used for expressive the statute does not ban any message but merely regulates the places purposes. Laws regulating access to property on the basis at which such communications can take place. of speech that is to be made on such property are generally Reasoning: Valid TPM because: unconstitutional. 1) it does not regulate speech but rather some of the places where Policy: The protection afforded to offensive messages does speech may occur; not always embrace offensive speech that is so intrusive 2) it was not adopted because of disagreement with the message it that the unwilling audience cant avoid it. conveys; and Test: In determining whether a statute is narrowly tailored, 3) the states interests in protecting access and privacy and providing the place to which the regulations apply must be taken into the police with clear guidelines are unrelated to the content of the account in determining whether the restrictions burden demonstrators speech. more speech than necessary.

Ward v. Rock Against Racism Must valid, time, place and manner restrictions be the least restrictive alternative?

NO

Facts: Ct upheld a guideline requiring sponsors of park bandshell concerts to use sound-amplification equipment and sound st technician provided by city held valid under 1 Am. as reasonable regulation of place and manner of speech. Holding: Passed TPM test. Narrowly tailored because did not burden significantly more speech than necessary, and there were alternative channels.

Vagueness and Overbreadth

TPM Application: 1) Regulation is content neutral (anyone using band shell) 2) Want to control unwelcome noise (significant goal); directly and effectively served goal bc city would have control reg doesnt need to be the least restrictive alternative / least intrusive means (dissent worried about too much deference to gov) city could say: use your people but set sound limits / police present 3) Still means of expression given reg: amplification issue / can still play whatever music Vagueness: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. A law is unconstitutionally vague when people of common intelligence must necessarily guess at its meaning. a. Concern that vague regulations will chill freedom of speech b. Fairness concern: not fair to punish someone for unknowing crime c. Enforcement concern: easy for enforcers to selectively enforce law

Reasoning: The regulations are content-neutral because the noise control is unrelated to content. Moreover, controlling noise pollution is a significant government interest. The requirement of narrow tailoring has been met since the regulation promotes the City (D)s interest in limiting sound, an interest that would not have been achieved without the regulations. While noise control was a goal unrelated to content, the means that the D used were less obviously content-neutral. There are 2 obvious criticisms of the characterization as content-neutral: 1) volume in and of itself may be part of the message because music played on one decibel level may be different from music at a different volume, and 2) the composition of the volume is almost certainly not contentneutral because music performed with more or less bass, for example, could change its character substantially.

Overbreadth: A law is overbroad if it regulates substantially more speech than necessary to accomplish its purpose. A person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others. (Substantially more speech = key words) 1) Must be real and significant intrusion on right to free speech. Substantially overbroad: No clear definition but show as much overbreadth as you can more likely to be held to be overbroad. There must be a realistic danger that the statute itself will significantly compromise recognized 1st Amendment protections of parties not b4 the ct. for it to be facially challenged on overbreadth. 2) May have to show that there are many situations in which law would intrude on right to free speech 3) Exception to 3rd Party Standing Rule: 3rd party may argue that the law is unconstitutional as applied to others, even if it is constitutional as applied to him. The person whom the law may be constitutionally applied can argue that it would be unconstitutional as applied to others. The over breadth is strong medicine because it involves the facial invalidation of a law and because it permits individuals standing to raise the claims of others not before the court. Individuals who otherwise could be constitutionally punished are allowed to go free COMPELLED SPEECH Compelled speech: Being compelled to speak violates the 1st Amendment. Rule: Government can not force you to say something you disagree with. (West Virginia Bd of Education v. Barnett) NO Facts: Forcing Jehovahs Witnesses to salute the flag and say the pledge is an infringement on speech Holding: Unconstitutional Reasoning: it promotes tolerance Compelled Speech Rule: Government cannot force you to say something you disagree with. Test: Is the compelled speech related to an affirmation of belief or conscience? If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

West Virginia State Bd. Of Education v. Barnette May a state condition the right to public education on a compulsory flag salute and pledge of allegiance to the flag?

Unconstitutional Conditions Doctrine

Government cannot condition a benefit upon requirement that a person forgo a constitutional right or deny a benefit to a person for exercising a constitutional right (Speiser v. Randall). - Government may not be obligated to give you benefit in the first place, but once given, cannot condition on right to give up Free Speech - Conversely, cannot deny benefit because of exercise of constitutional right Exceptions - Government Funding: 1) If government is funding private speech, it can make subject matter based distinctions but must remain viewpoint neutral. (NEA v. Finley; Legal Servs. Corp. v. Velazquez). 2) If government is speaking (government speech) through funding of private speakers, it must be viewpoint based. (Rust v. Sullivan) If government speech then even viewpoint-based funding restriction is ok (Rust) If private speech, then must be viewpoint-neutral (Velazquez) Determining whether a funding program is Viewpoint-Neutral or not: Its ok to be content based b/c the government cannot fund everything but not ok to be viewpoint based b/c dont want censorship of unpopular ideas. (NEA: decency requirement was held not to be viewpoint based.) Challenger must show that the law suppresses disfavored viewpoints. Government can fund art with one of the conditions being general standards of decency. Art is inherently subjective so the context shows this is not a viewpoint-based law. (NEA v. Finley) When gov funds, the concern is vagueness. (NEA v. Finley not overly vague) If the government is funding private speech, then it cannot limit what private actors are speaking (Law says SC grantees may not bring class action suits against the gov this is unconstitutional b/c limits attorneys speech. LSC v. Velasquez) NEA v. Finley NO Facts: claim statute is facially invalid for viewpoint Analysis: Is the decency standard viewpoint-neutral? Is a statute discrimination and vagueness. They have not been Could Say: No, Can be positive about particular religion, but cant unconstitutional denied grants. be negative requiring the NEA to OConnor rights opinion, this is not doing anything, there Arg: Gov should be able to pick a side if its funding jduge the artistic are no categorical differences here. Thomas and Scalia Arg: Want to keep gov VP-neutral bc fear censorship / suppression merti of grant are in concurrence. of ideas, even though gov money, esp in realm of art Holding: Ct. upheld regulation criteria on the basis that it What if: Government doesnt want to fund racist art? application to take was content neutral. (Constitutional) into considerations VP-Neutral: Even if we find art offensive, not a place for censorship Reasoning: When the govt is giving subsidies, general standards of Slippery slope arg: Dont want decency rule bc if allow gov to decency and respect imprecise criteria are permitted, even if they would not be choose for the diverse tolerated in a regulatory scheme. Could argue: vagueness problems too who decides? Could lead beliefs and values of to discrim enforcement of law / censorship / suppression of ideas the American The gov may allocate competitive funding according to public? criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake. Rust v. Sullivan Y Facts: regulation provided that no grantee could use funds for performing abortions, promoting abortions, or giving abortion referrals in the May the gov E context of family planning prohibit grantees S Holding: Ct upheld gag rule because government can fund a program to fund certain activities it believes to be in the public interest of funds given without at the same time funding an alternate program that seeks to deal with a problem in a different way. Not denying a benefit. Why isnt this viewpoint discrimination? This is the govt promoting family planning, not a certain message. Other options available. under the Public Health Service A legislatures decision not to subsidize a fundamental right, does not infringe on that right. Act from offering View promotes anything other than abortion so viewpoint based. or advocating Court Not a restriction on speech because can still talk about abortion, promote outside the clinic. Just the state choosing to fund abortion as a one program over another. method of family Rule: If the government is speaking through the grantee as a speaker, then it is ok to be selective in the message. The gov can, without planning? violating the Const. selectively fund a program to encourage certain activities it believes to be in the publics interest without at the same time funding an alternative program which seeks to deal with the problem in another way

Legal Services Corp. v. Velazquez

Facts: Lawyers representing welfare clients can get funding but cannot question the welfare statute Rule: If the government is funding private speech, then it cannot limit what private actors are speaking. Rule: When government subsidizes speech/funding speech it can make content based subject matter distinctions Does LSC program restriction that but must remain viewpoint neutral. prohibits federal LSC funding of any In Rust, Abortion is not a viewpoint but a form of content; contrast to Legal Services Corp: Government organization that represents conditioned funding for civil legal services on condition that the money not be used to challenge welfare laws. This indigent clients in an effort to was an unconstitutional, viewpoint-based control on welfare. So Doctor Speech vs. Lawyer Speech amend or otherwise challenge exististing welfare law violate the Velasquez lawyers speaking against the government so funding must not be speaking for the government. 1st Amendment? Rust doctors speaking for the government at a free clinic. Conduct That Is the government regulating conduct that communicates (expressive or symbolic conduct)? Communicates Conduct is protected expression if (1) actor has intent to convey a message and (2) substantial likelihood that audience would understand the message. Rules apply to corporations as well as individuals (Citizens United v. FEC): YES OBrien Test: (1) regulation is unrelated to suppression of free speech; (2) important government interest; (3) restriction is no greater than essential to furtherance of government interest. YES Facts: OBrien was convicted of a violation of a federal statute after he publicly burned his draft card during a demonstration against the compulsory draft and the war in Vietnam. Holding: Reasoning: 1) Law prohibiting burning draft cards was not content based. The ct found the requirement that the card be in the possession of the holder to be a valid requirement. The Ct also found an independent justification for both the possession requirement and the prohibition against mutilation or destruction. 2) The statute was intended as a necessary and proper method to carry out a vital governmental interest Congress had a legitimate and substantial interest in preventing the destruction of draft cards + the regulation is sufficiently narrow. 3) No reasonable alternative is apparent and the narrow construction of the statute indicates it was not intended to suppress communication. CT said when speech and non-speech elements are combined in the same conduct, a sufficient govt interest in regulating the nonst speech element can justify incidental limits on 1 Am. freedoms. Govt can reg. if reg. furthers substantial or important govt interest; if govt interest is unrelated to the suppression of free expression; st and if the incidental restriction on 1 Am. freedoms is no greater than is essential to further the govt interest. This is just like intermediate scrutiny. OBrien Test: If regulation incidentally affects expression, or government has important aim unrelated to the expression, balancing test is applied; government interest is weighed against the impact of the law on expression 1) Must be within constitutional power to enact the law 2) The law must be unrelated to the suppression of speech (want to make sure there is no viewpoint or content-based regulation). If content neutral go to next 2 steps (like TPM test). If content-based apply content-based test (SS applied to uphold regulation) 1) The government has a compelling interest to do so and the means of regulation are necessary to achieve that interest. 2) The law regulates conduct and not the content of the speech associated with it. 3) It must further an important or substantial government interest 4) Any incidental restriction of speech is NO greater than is necessary to further the asserted government interest Look for in all speech: - When speech and non-speech elements are combined in the same course of conduct, a sufficiently important government interest in regulating st the non-speech element can justify incidental limitations on 1 A. freedoms.

United States v. OBrien May the gov incidentally limit 1st Amendment rights where it seeks to regulate the nonspeech aspect of conduct composed of both speech and nonspeech elements where that regulation is supported by a vital government interest?

Texas v. Johnson May burning the U.S. Flag as a means of political protest be criminalized?

NO

Facts: D convicted of desecrating a flag, which was a violation of Texas law, in political protest. Holding: Ct. held that Texas's breach of peace/fighting words argument was bogus. (Unconstitutional) Ps Argument: Wants to prevent breaches of the peace. However, the court says that no breach of the peace occurred. Rationale: P said Ds conduct was expressive. Says that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished symbol represents. st Discriminatory Conduct: 1 Amendment does not protect speech and attendant conduct that is motivated by bias or discrimination. Viewpoint discrimination: cannot prohibit expression of an idea simply because others might disagree with that message (Texas v. Johnson) Determine whether Ds burning of the flag constituted expressive conduct If expressive, is States regulation is related to suppression of free expression. If state interest is not related to suppression of expression, OBrien test applies. If state interest is to suppress expression, Strict Scrutiny.

Citizens United v. FEC, majority & dissent

Incitement to Illegal Activity

Facts: Citizens United created a documentary aimed at Reasons why we protect corporate speech 1) Anti-distortion Senator Clinton during the 2008 race, and ran ads to urge others to order it on-demand to watch. We cant stop all speech that we dont like Holding: The Government may not suppress political 2) Prevention of corruption or appearance of corruption speech on the basis of the speakers corporate identity. Concludes that there is not corruption here b/c no quid pro quo Dissent: The distinction between an individual and bribery 3) Court finds the funding situation healthy-technically the people corporation is significant. Congress throughout history has are in charge of the funds b/c the corporations influence the put limitation on corporate spending, and this should not people=more speech=healthy for democracy change now. This court states corporations do not need PACs, but they helps protect shareholders from engaging in business with a corporation without the fear of possibility supporting a political agenda they do not agree with. st Overarching 1 Amendment Questions: When can speech be punished because it advocates illegal acts or overthrowing the government? When may speech that advocates criminal activity be stopped to promote order and security? NB: very speech protective now vs. days of Clear & Present Danger test (Schenck). Incitement to Illegal Activity: Brandenburg test (1) imminent harm; (2) likelihood of illegal action; (3) intent to cause imminent lawless action.

Schenck v. US Does the right to freedom of speech depend upon the circumstances in which the speech is broken?

YE S

Holding: Ct. held that it was constitutional to punish Schenck for handing out anti-war handbills to military conscripts. Held that free speech did not extend to "words usedin such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (Not good law) (OLD TEST) Clear and Present Danger: Words used in a manner and specific context where they would bring about a criminal harm. Words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximate and degree.

Whitney v. CA Is a statute that punishes a person for becoming a knowing member of an organization that advocates use of unlawful means to effect its aims, a violation of due process and a restraint of freedom of speech, assembly, and association secured by the Constitution?. Brandenburg v. Ohio NO

NO

Holding: CT upheld conviction of lady for attending a meeting to organize a branch of the communists labor party where she took a moderate position. No danger flowing from speech can be deemed clear and present; unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. (Defines imminent) Rational Basis applied and law was upheld.

Facts: KKK cross burning in secluded area. Criminal syndicalism act prohibited assembling and advocating criminal activity. Holding/Rule: Government may regulate speech that is likely to incite imminent lawless action, but cant punish for Does a statute that proscribe advocacy of the use of force, advocating violence for political reform. KKK leader cant be punished until clear and present danger Incitement to Illegal Activity: The urging of a group or person to take immediate action (Brandenburg v. Ohio) where such advocacy is Brandenburg Test for Incitement (overrules Whitney): directed to inciting or 1) Imminent Harm producing imminent lawless action, and is liekly to produce How quickly after speech will harm occur? 2) Substantial likelihood of producing illegal action or incite such action, violate the rights guaranteed by the Speaker intends to incite or produce imminent lawless action and is likely to do so; 1st and 14th Am.? Is probability of illegal action increased after speech made? 3) Intent to cause Illegal Action Applies only where speaker urges illegal action in opposition to government, government policies, or private parties. Intent can either be determined by foreseeable consequences or specific intent Indecent Def. of Indecent Speech: Indecent speech (profanity or sexually oriented speech) that does not rise to the level of obscenity is fully Speech protected speech except in broadcast media government can prohibit. Government still cannot make a content based distinction but can regulate and ban indecent speech. Indecent Speech: Indecent speech (profanity or sexually oriented speech) is fully protected speech, except in broadcast media government can prohibit (FCC v. Pacifica). 1) Indecency or profanity communicated through WORDS Fully protected category of speech Strict Scrutiny applied to laws regulating 2) Indecency or profanity communicated through INTERNET Fully protected category of speech Strict Scrutiny applied to laws regulating indecent speech on the internet Reno v. ACLU: internet is different from broadcast media b/c an individual must take affirmative steps to get on the internet and gain access to indecent material 3) Indecency or profanity communicated through BROADCAST MEDIA Less protected category Rational Basis review applied Court will look to the time of broadcast, childrens exposure, ability to tune out FCC v. Pacifica: George Carlins monologue on the radio can be regulated b/c children have access to these mediums Government cannot prohibit the use of specific words in a public place where speech is not legitimately restricted. Words so protected are not obscene; but are merely indecent, vulgar, or offensive. Risk of censorship in specific words is the possibility of a government ban on the expression of a unpopular message. (Cohen v. California; FCC v. Pacifica Foundation).

Cohen v. California Can a state constitutionally prevent the use of certain words on the grounds that the use of such words is offensive conduct?

NO

Facts: D, while in a county courthouse corridor, was wearing a jacket bearing the plainly visible words Fuck the Draft. Holding: law was unconstitutional 1) Not fighting words (not directed as a personal insult at anyone) 2) Not obscene (not erotic) 3) Not intrusive (can look away) 4) This is not a captive audience problem since a viewer could merely avert his eyes, there is no evidence of objection by those who saw the jacket, and the statute is not so limited. - Captive audience arguments: We ought to be able to protect people who do not want to be exposed to this speech. When you prohibit certain words, you prohibit ideas. - Profanity not per se unprotected. Test for Captive Audience: The ability of the gov to shut off discourse solely to protect others from hearing it is dependent on a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Facts: George Carlins Filthy Words show broadcast Nuisance may be merely a right thing in the wrong place. Speech was indecent but not obscene st Holding: Government may regulate speech which is Broadcast media receives limited 1 Amendment protections because indecent yet not obscene. of prior warnings of upcoming vulgar content are often insufficient to Regulation subject to RATIONAL BASIS REVIEW b/c: listeners tuning in and out. Broadcasting is also available to children, 1) Intrusive medium (in peoples homes) even though too young to read. 2) Pervasive (tune in, tune out) 3) Access by children Court said warning were insufficient b/c people could tune-in midUnder rational basis, government has legitimate interest in broadcast, also that broadcast accessible to young children. It was controlling speech heavily emphasized that this broadcast occurred at 3pm in the afternoon. Everywhere except broadcast media, indecent speech is protected. FCC is an exception. Holding: Content-based government regulations on speech are unconstitutional unless the government can demonstrate that it has a compelling interest for the regulation and that the regulation is the least restrictive means of achieving that hah Holding: Less restrictive alternatives should be employed when the government seeks to restrict content-based speech. st Dissent: Test for less restrictive: An alternative is less restrictive only if it will work less 1 harm than the statute itself, while, at the same time, similarly furthering the compelling interest that prompted Congress to enact the statute.

FCC v. Pacifica Foundation May gov regulate speech that is indecent but not obscene?

YE S

Reno v. ACLUskim case Ashcroft v. ACLU-skim case

Student Speech Student Speech: Tinker permits regulation of student speech only if it threatens substantial disruption; but Fraser permits regulation of lewd or vulgar student speech; Kuhlmeier permits regulation of schools own speech, e.g. school newspaper or cheer team; Morse permits regulation of student speech advocating illegal drug use, but would protect political speech regarding the wisdom of drug policies. Tinker May school officials restrict a student's right of expression without showing that the expression constituted a material and substantial interference with the requirements of appropriate discipline in the operation of the schools? Morse v. Frederick May public schools prohibit students from displaying messages promoting the use of illegal drugs at schoolsupervised events? NO NO Facts: School officials suspended students from public high school bc they wore black armbands in protest of Vietnam war. Holding: Absent a showing of material and substantial interference with requirements of appropriate discipline, school officials may not constitutionally prohibit the expression of a particular opinion by students. Reasoning: The expressed justification was a fear that the wearing of armbands would cause a disturbance and distract from orderly process of learning. However, the only reaction occurred after school, off the grounds, when several students made hostile remarks. A major part of the students development must come from individual assertion of opinion and interaction with other students. The school may not confine this expression to a dogma laid down by its officials. This does not mean that expressions that cause actual disturbance may not be prohibited. But no such action was demonstrated in this case. Facts: Bong Hits 4 Jesus case. School punished the kid. Reasoning: Under this rationale the school could regulate it and say it promoted drug use, which was contrary to public school education Holding: Public schools may prohibit students from displaying messages promoting the use of illegal drugs at schoolsupervised events. The speech rights of public school students are not extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. Students have some right to political speech even while in school, but the right does not extend to pro-drug messages that may undermine the schools important mission to discourage drug use. Public schools may prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events (Morse v. Frederick)