Summary of Part V Freedom of Expression Constitutional Law Mr. Morrison Spring 2006

Constitutional Law: First Amendment2 First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacably to assemble, and to petition the Government for a redress of grievances.”

Spring 2006 Constitutional Law: First Amendment3 1 st and 14 th Amendments 1 st Amendment—Federal action 14 th Amendment (incorporating the 1 st )—State and local action

Spring 2006 Constitutional Law: First Amendment4 Prior Restraints What is a prior restraint? Censorship; requirement of prior approval Injunction or prohibition of selected speech Very strict limits on prior restraints Near v. Minnesota New York Times v. United States But some exceptions Enforcement of copyright Enforcement of agreements. Snepp v. U.S.

Spring 2006 Constitutional Law: First Amendment5 Content-based restrictions Strict scrutiny Compelling interest No less burdensome means

Spring 2006 Constitutional Law: First Amendment6 Content-based restriction Incitement of illegal activity Dennis v. United States Brandenburg v. Ohio Distinguish “abstract teaching” from “preparing a group for violent action” Fighting words Can be seen as application of “incitement” Also possibly fitting here-- Child pornography (aiding the illegal act) New York v. Ferber

Spring 2006 Constitutional Law: First Amendment7 Other restrictions: Time, manner, place Other restrictions, not based on content, must meet an intermediate level of scrutiny Content neutral Narrowly tailored to serve a significant governmental interest Leave open ample alternative channels of communication

Spring 2006 Constitutional Law: First Amendment8 Other restrictions: “Speech plus,” symbolic speech Regulation of collateral activity related to speech United States v. O’Brien Important governmental interest Within the power of the governmental unit Unrelated to suppression of free expression No greater than essential to furthering that interest

Spring 2006 Constitutional Law: First Amendment9 Some additional limits Vagueness Overbreadth Either kind of law may chill protected speech, and may lead to a challenge to the law “on its face.”

Spring 2006 Constitutional Law: First Amendment10 Public forum The government as property owner Traditional public forum (streets, parks) Above rules apply Limited public forum (opened for a particular purpose More restrictive; must be content-neutral Not a public forum Government may regulate

Spring 2006 Constitutional Law: First Amendment11 Obscenity Test for obscenity Miller v. California Average person, applying contemporary community standards, would find work, taken as a whole, appeals to prurient interest (Note: local standard) Depicts in a patently offensive way specifically defined sexual conduct Lacks serious literary artistic, political, or scientific value (Note: national standard)

Spring 2006 Constitutional Law: First Amendment12 Obscenity (Some notes) Not all pornography is obscenity If not, regular rules apply Not all pornography is speech Other regulations, like zoning, can apply. Paris Adult Theater v. Slayton; Renton v. Playtime Theaters

Spring 2006 Constitutional Law: First Amendment13 Defamation and Privacy Defamation New York Times v. Sullivan Public official Knowledge of falsity or reckless disregard (“actual malice”) Private individuals about public issues “Fault” Gertz “Actual malice” for punitives Private indivuals about non-public issues Only “fault” restriction Greenmoss Burden of proof of falsity on plaintiff

Spring 2006 Constitutional Law: First Amendment14 Commercial speech Special test Central Hudson Lawful activity; not misleading Substantial governmental interest Regulation directly advances governmental interest Not more extensive than necessary (perhaps weaker)

Spring 2006 Constitutional Law: First Amendment15 Freedom of Association Expressive association—freedom of association protections apply Contrast Boy Scouts and Jaycees