強說愁

VII. The First Amendment

A.   Free Speech Methodology

1.   Content-based v. Content-Neutral restrictions

a.    Content-based restrictions on speech → Strict Scrutiny (generally)

i.     Subject matter restrictions – dependent on the topic

ii.    Viewpoint restrictions – dependent on the ideology of the message

b.   Content-neutral restrictions on speech → Intermediate Scrutiny 
The law must advance important interests unrelated to the suppression of speech and must not burden substantially more than necessary to further those interests.

2.   Prior Restraints

Prior restraints prevent speech before it occurs, rather than punish it afterwards. The gov't must show that some special societal harm will otherwise result.

a.    Court orders – Strict Scrutiny

      Collateral bar rule – court orders must be complied with until vacated/overturned; otherwise is barred from challenging it

b.   License

      Valid only if there is an important reason for licensing and clear criteria (defined standards) leaving almost no discretion to the licensing authority.

      A Statute gives licensing officials unbridled discretion is void on its face → speakers need not even apply for a permit.

c.    Procedure safeguard

i.     The standards must be narrowly drawn, reasonable and definite;

ii.    Injunction must promptly be sought; and

iii.   Prompt and final determination of the validity of the restraint

3.  Vagueness and Overbreadth

a.    Vagueness:

      A law is unconstitutional if a reasonable person cannot tell what speech is prohibited and what is allowed.

b.   Overbreadth

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated

c.    Fighting words laws are unconstitutionally vague and overbroad

4.  Symbolic Speech

      The gov't can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the purpose

5.  Anonymous speech is protected

B.  Speech afforded no/less protection

1.  Incitement of illegal activity – NOT PROTECTED

      The gov't may punish speech if there is:

      a.   A substantial likelihood of imminent illegality; and

      b. If the speech is directed to cause the imminent illegality

2.   Obscenity and sexually-oriented speech

a.    A speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:

i.     Appeals to the prurient interest (local standard)

      The material must excite shameful/morbid interest in sex

ii.    Patently offensive under the law prohibiting obscenity

      The law must explain offensive materials and this prong shall be decided under contemporary community standard

iii.   Lacks serious redeeming artistic, literary, political or scientific value (national standard)

b.   Zoning ordinances may regulate the location of adult bookstores and movie theaters

c.    Child pornography may be completely banned, even not obscene

d.   Gov't may punish not punish private possession of obscene materials, but the gov't may punish private possession of child pornography

e.    Gov't may seize the assets of businesses convicted under obscenity law

f.    Profane and indecent speech is generally protected by the 1^st Amend.

      Exceptions – over the free broadcast media, and in schools

3.  Commercial speech

a.   Not protected commercials:

      False, misleading, fraudulent commercials and commercials of unlawful objects, e.g. contraband are not protected.

b.   True commercial speech that inherently risks deception can be prohibited

i.     The gov't may prevent professionals from advertising or practicing under a trade name

ii.    The gov't may prohibit attorneys' in-person solicitation for profit

iii.   The gov't may not prohibit accountants from in-person solicitation of clients for profit

c.    Other commercial speech may be regulated under the intermediate scrutiny test:

i.     The regulation must serve a substantial gov’t interest;

ii.    The regulation directly advances that interest;

iii.   The regulation is narrowly tailored to serve that interest.

      Note: The regulation needs not to be least restrictive.

4.   Defamation

a.    Public official

      Public official or person who is running for public office:
i.     May recover for defamation by proving:
        a) Falsity of the statement
        b) Actual malice (knowledge or reckless disregard)
        c) Actual injury
ii.    Damages

Only compensatory damage for actual injury is available.

b.  Voluntary Public figure (those who thrust themselves into the limelight)

      The test is as the same as public official.

c.    Involuntary Public Figure (Private figure but a matter of public concern)

i.     P needs to prove:

a)  Falsity of the statement

b)  Negligence by the defendant

c)   Actual injury

d)   Actual malice (for presumed and punitive damage)

ii.    Damages

a)   Compensatory for actual injury

b)  Presumed and punitive if can show actual malice

d.  Private figure and a matter of private concern

i.     P’s burden of proof is unclear, but:

a)   P must most likely show negligence

b)  D has the burden of proving truth

ii.    Damages

      Compensatory, presumed and punitive (actual malice not required)

5.   Freedom of the Press (Privacy)

a.    Gov’t may not create liability for truthful reporting of information that was lawfully obtained from the gov't (ex. – names from report)

b.   No liability of media broadcasts an illegally intercepted tape if the media did not participate in the illegality and it involves a matter of public importance

c.    The government may limit its dissemination of information to protect privacy

Exception – rape victim's personal information.