First Amendment Speech Worksheet April, 2012 DRAFT

Less Scrutiny More Restriction Permissible (Including absolute ban, criminalization)

I. Threshold Questions (Justicability, Power of Congress, etc.) II. First Amendment Limits A. What is the Role of the Government?
2. The government is acting as a sovereign (e.g. regulating)

More Scrutiny Less Restriction Permissible

1. The government is acting in an alternative role. If the government is acting as speaker, sponsor of a speaker, proprietor, administrator of a prison, school, etc. (rather than a sovereign regulator) look for reduced level of First Amendment scrutiny. See Rust v. Sullivan, Summum, e.g.

B. What is the nature of the government regulation?

1. The Government claims that the speech being regulated is not traditionally within the freedom of speech.

2. Restriction is content neutral

3. Regulation is based on content

Obscenity See, e.g., Miller v. Cal.

Regulation of Symbolic Conduct. Regulation must be directed at noncommunicative aspects of the conduct. See Below. Obrien

4. Questions raised by the FORM of the regulation--substantially broad, vague, or involves prior restraint irrespective of content or whether speech is protected

Intentional intimidation or threat

Criminal activity, (e.g. Fraud, Blackmail, harassment) where speech may be only evidence of criminal action Child Pornography (even if not obscene).

Regulation of speech aimed at secondary effects not at content of speech. (no parade because of litter?) Neutral Time, Place or Manner regulation Ward v. Rock v. Racism

Lower Value Speech

B. Generally. Content Regulation of speech (e.g. Texas v. Johnson.) will trigger strict scrutiny

Intentional Incitement of Imminent Lawless Action. See Brandenburg.

Non obscene Adult expression. especially where kids are potential captive audience. But cases involving media that is more controllable by the listener/viewer may involve greater level of scrutiny.

Likely to create imminent danger of uncontrolled violence from hostile audience (where police made efforts to control the crowd.)

Fighting words, Personal insults which inflict injury or tend to incite an immediate breach of the peace. Chaplinsky v. NH, see also, R.A.V. *

*Note R.A.V. suggests that even unprotected speech must not be regulated based on content (with certain exceptions). Extent of application still unknown.

Low Scrutiny: States ends must be legitimate. Means (legislation) need only be reasonably related to ends. Not irrational. Viewpoint discrimination may still be suspect.

Strict Scrutiny: Statute less likely to be upheld. States Ends must be compelling. Means (legislation) must be necessary (very tight fit to achieve goals. Cannot intrude on speech any more than necessary.)
Intermediate Scrutiny: See e.g. Obrien; Rock v. Racism. States Ends Must be Significant Means (legislation) must not burden substantiallly more speech than necessary. (alternate means of communication must remain available)