In re Tam on Appeal to Group 2 Seattle IP Inn of Court

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What counts as “speech?” “Congress shall make no law... abridging the freedom of speech...” Any expressive communication – Written – Oral – Expressive conduct

Can government “abridge” speech? “Congress shall make no law... abridging the freedom of speech...” BUT: Government can make some laws abridging some speech

Historically permitted abridgments Fighting words (but not offensive words) Incitements to and threats of violence (if clear & present danger) Defamation (“actual malice” for public figures) Obscenity (Miller test)

Other permitted abridgements When government speaks on its own behalf – Public monuments – Vanity license plates Time, place, and manner limitations

Particularly disfavored abridgements Prior restraint Content regulation Viewpoint discrimination

Content-based abridgements must pass “strict scrutiny” Government regulation must – Achieve compelling government interest – Be narrowly tailored to meet that interest Stringent standard, rarely satisfied Viewpoint discrimination not allowed “Commercial speech” subject to “intermediate scrutiny” See Central Hudson Gas & Electric

What is “commercial speech?” Speech that “does no more than propose a commercial transaction” See Virginia Board of Pharmacy Not necessarily commercial speech if: – Advertisement – Refers to a product – Economic motive

Commercial speech must pass “intermediate scrutiny” Government can prohibit commercial speech that: – Proposes an illegal transaction – Is false or misleading Government can regulate commercial speech if: – Substantial government interest – Regulation directly advances the interest – Regulation is narrowly tailored to serve the interest (reasonable fit between end and means)

Unconstitutional conditions Government may not require surrender of constitutional right in exchange for a government benefit – Improper government coercion – Particularly applicable in free speech context

Challenging the abridgement Facial challenge—law is unconstitutional, period (“strong medicine”) As applied challenge—law may be constitutional, but not in this case Challenge based on vagueness or overbreadth