First Amendment Short Outline

Introduction
I. Intro
A. Main Struggle of First Amendment Law
1. Fundamental human ability (communication) vs. fundamental human
structure we create (law)
a. Look to why we have laws & why communication is important
B. What courts weigh in 1st Am. Cases
1. Competing Interests
a. Public safety, silencing speech, reputations, national security,
offense, value of speech
2. Value of Speech
a. Generally to listeners/society as a whole
b. Political/public policy oimportance
3. Context
a. What happened and where?
Theories of Free Speech
II. Theories of Free Speech
A. Societal Focus Freedom of expression is important of the community
1. Marketplace of Ideas (John Stuart Mills)
a. Commonly held view may be false & censored idea true
b. The more ideas the better take precaution against our own
fallibility
c. Every truth needs to be tested or it becomes dogma
d. Likely some truth and some falsity in all opinions
i. If were allowed to test our ideas, well improve
2. Criticisms of Marketplace of Ideas
a. Marketplace can be distorted
b. There are other values beyond truth
c. Truth may not be objective
3. Self-Governance Theory (Alexander Miecheljohn)
a. Political decision-making is vitally important
i. 1st Am. like a town-hall meeting protect political speech
b. Goal is protection of all ideas, not all speakers
c. Think about the group has the audience heard everything it
needs to hear?
4. Criticisms of Self-Governance Theory
a. Undervalues the value to the individual
b. How to you measure what ideas are different? What is political?
5. Communitarian Model (Cass Sunstein)
a. We the people are the vital words
i. Putting the power of government in the people & need to
allow the people to make good self-governing decisions
b. Speech is political when intended & received as a contribution to
public deliberation about an issue
c. Government should facilitate & promote free speech

6. Criticisms of Communitarian Model

a. Defining public deliberation is difficult
b. Doesnt protect commercial speech
7. Criticisms of all societal theories
a. What about the speaker?
B. Individual Focus Expression is important of the individual
1. Individual Fulfillment Model (C. Edwin Baker)
a. 1st Am. protects an area of individual liberty
b. Purposes: individual fulfillment/self-definition and individual
participation in social change
c. Artistic and creative expression involves purposes; subjectmatter shouldnt matter you change the social world
2. Criticisms of Individual Fulfillment Model
a. What about the listener?
b. Wouldnt protect commercial speech
3. Individual Self-Realization Model (Martin Redish)
a. Self realization is the primary mode
b. Two sub-values: intrinsic (individuals control their own destinies)
and instrumental (individuals develop their own faculties)
c. To control our destinies and as a value of democracy, we need
free speech
4. Criticisms of Individual Self-Realization
a. Lots of factors help us control our own destinies beyond speech
b. Speech may not be uniquely human elevating speech to an
undeserved level
5. Dissent Model
a. We should embrace the dissident and romantic who stands along
and says Thats wrong! its what the 1st Am. is all about
Incitement to Criminal Action
III. Incitement to Criminal Action
A. Schenk v. U.S. (Holmes) (1919) (leaflets to draftees)
1. Clear and present danger applies bad tendency test (all about the
context)
a. What disturbance to public order might result from these words?
b. Does it have the tendency to bring about something bad?
B. Masses Publishing v. Patten (Hand) (S.D.N.Y. 1917) (radical magazine)
1. Test for incitement:
a. Speech must actually counsel/directly advocate some act
b. Express or direct advocacy of law violation
C. Abrams v. U.S. (7-2) (1919) (Russian leaflets)
1. Majority: bad tendency test
2. Holmes/Brandeis Dissent: Requirements for clear and present danger
(more rigorous, requires nexus between words and action):
a. Clear and imminent
b. Present danger of immediate evil
D. Brandenburg v. Ohio (1969) (per curium) (KKK) STILL GOOD LAW
1. Speech is protected UNLESS it is:
a. Directed to inciting or producing

b. Imminent, lawless action; AND

c. Likely to incite or produce such action.
2. Components: lawless, imminent, likely
Words That Wound
IV. Fighting Words
A. Chaplinsky v. New Hampshire (1942) (9-0) (yelling at cops)
1. 2 Types of Speech: worthwhile & worthless
a. Worthless: obscene, lewd, profane, slander, fighting words
i. Can be regulated freely
2. Look to whether speech is worthwhile/a step towards truth
B. Cohen v. California (1971) (Harlan) (fuck the draft)
1. Cant regulate a word just because its offensive
a. Which words can be regulated?
b. Emotion means it has constitutional worth
c. The suppression of certain words inevitably suppresses certain
ideas
d. Listeners have a responsibility, too (avert your eyes)
2. Protected speech self-governance, marketplace of ideas, individual
fulfillment
3. First time SCOTUS talks about the interests of speakers, not just the
audience
C. Gooding v. Wilson (1972) (threatening cops)
1. 2-Prong Test for Fighting Words:
a. Words spoken in a face-to-face encounter; AND
b. Likely to cause an immediate breach of peace by the individual
addressee
V. Hate Speech and Intimidation
A. Theories of Hate Speech
1. Delgado We need to protect even outrageous speech
a. Free speech is equality
2. Lawrence Racial epithets are a verbal slap in the face
a. Cause a loss to the marketplace of ideas because they silence
victims
3. Post Problem is structural racism, not speech
a. Its about discrimination, not language. The discussion must
continue
4. Haiman Lawrence is wrong; silence isnt automatic
a. We shouldnt approve of any law that says people are
automatically triggered by language
B. R.A.V. v. St. Paul (1992) (Scalia) (cross burning)
1. Can prohibit ALL fighting words, but not fighting words on just specific
topics
2. Test for Content Discrimination:
a. Is the statute content-based?
b. If yes, 2 prongs
i. Does the state have a compelling interest in regulating
this?

a. i.e., words most likely to cause a fight

ii. Was the ordinance narrowly tailored?
a. Did it do exactly what it was supposed to do?
b. Was there another way to accomplish the same
thing?
C. Wisconsin v. Mitchell (1993) (9-0) (Rehnquist) (beating up white kid)
1. Penalty enhancers for racially motivated crimes constitutional
a. 1st Am. doesnt protect violence
b. This is punishing conduct, not speech
D. Virginia v. Black (2003) (OConnor) (cross burning)
1. Intimidation/true threats are not protected
2. Intimidation: directs a threat with the intend of placing a victim in fear
of bodily harm or death (worst kind of true threat)
a. Unclear whether you look at the facts of the case or an objective
test of what a reasonable person would think
Defamation
VI. Defamation
A. New York Times Co. v. Sullivan (1964) (Brennan) (libel of public figures)
1. Standard for Libel
a. Statement was false, defamatory, and made with actual malice
i. Malice = knowledge that it was false, or with reckless
disregard for its truth or falsity
b. In order for a public official to recover, must prove all of those
things
i. Burden is on the
ii. An honest mistake is okay, a reckless mistake is not
B. Gertz v. Robert Welsch, Inc. (1974) (Powell) (said he was a commie)
1. If you are deemed to be a private , in order to recover any money
against a media , you have to at least show negligence (not actual
malice)
a. Easier for private citizens to collect initial damages (the first $1)
b. To protect private reputations
2. But if you want punitive damages, you have to show ctual malice even
if you are a private
a. To protect 1st Am. interest (of media )
C. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) (credit
reports)
1. Where a private sues on a matter of public concern, to get
presumed/punitive damages, must show actual malice
2. HOWEVER, this is a matter of purely private concern
a. Where a private sues on a matter of private concern, just have
to prove negligence for punitive damages
Invasion of Privacy
VII.

Privacy
A. Florida Star v. B.J.F. (1989) (Marshall)

1. Publication cannot be punished under 1st Am. if:

a. Information was lawfully obtained and truthful;
b. The information is a matter of public interest; AND
c. The state interest sought to be protected is NOT of the highest
order
B. Public Significance
1. What is public significance? (can look at a bajillion factors)
2. About the listeners rights, not the speaker
Prior Restraint and National Security
VIII.

Prior Restraint and National Security

A. Theory of Prior Restraint
1. Blasi Why we disfavor prior restraint
a. Adjudication too abstract at an early stage; would be overused
b. Implies a distrust of audiences & an inability to hear messages
and respond in a mature fashio
c. Forces the speaker to communicate on the states terms and not
his own
2. Redish Disagrees with Blasi
a. Full and fair adjudication and irreparably harm are required for
judicial proceedings (might even make it harder for government
to prove)
b. We should disfavor prior restraint more in licensing no judicial
review
3. Everyone hates prior restraint because its not freedom of speech at all
B. Near v. Minnesota (1931) (Hughes) (5-4)
1. No prior restraint of the press other remedies like libel laws
2. Dicta: prior restraint would be permissible in certain situations (i.e.,
involving national security)
C. New York Times Co. v. U.S. [The Pentagon Papers Case] (per curium)
(6-3)
1. Holding: Heavy presumption against constitutional validity of prior
restraint
2. Stewart Concurrence:
a. To get prior restraint, evidence must show that the publication
will surely result in direct, immediate and irreparable harm to
our nation or its people

Content-Neutrality, Symbolic Conduct and the Law of Time, Place and Manner
IX. Time, Place and Manner
A. Hague v. CIO (1939)
1. Requiring a permit to speak in public places unconstitutional
2. Parks and streets have been held in the public trust, time out of mind
a. You need a good reason to regulate with a nexus to the
regulation
B. Chicago Police Dept. v. Mosley (1972) (Marshall)
1. Regulation on the basis of content is highly disfavored

2. The ordinance itself describes impermissible not in terms of time, place

and manner, but in terms of subject matter
a. 1st Am. means that government has no power to restrict
expression because of its message, ideas, subject matter or
content
C. Grayned v. Rockford (1972)
1. Things to check in statutes/ordinances:
a. Viewpoint & content-neutrality
b. Narrowly tailored to achieve a significant governmental interest
i. Has to make rational sense
c. What are they trying to accomplish and where?
i. Look at the nature of the space
D. Perry Education Assn v. Perry Local Educators Assn (1983) (White)
(mailboxes in school) THE CURRENT TEST
1. 3-Part Test
a. Part 1: What is the public space? Traditional public form,
designated public forum or nonpublic forum?
i. Traditional Public Forums
a. Streets, parks, etc. have traditionally been devoted
to public debate time out of mind
ii. Designated Public Forums
a. Limited public forum
b. Places not automatically open for public use, but
state has opened for public activity (i.e., meeting
room in a school)
c. Once opened, must be open on an equal basis
iii. Nonpublic Forums
a. Government-owned, but not a traditional or
designated public forum
b. Part 2 & 3
i. If a traditional or designated public forum:
a. If content-neutral, government must show:
1. Serves a significant governmental interest;
2. Narrowly tailored to achieve that interest; and
3. Leaves ample alternative channels of
communication.
b. If content-based, government must show
1. Regulation serves a compelling governmental
interest; and
2. Narrowly tailored to achieve that interest
ii. If a nonpublic forum:
a. Government must only show that regulation:
1. Is NOT viewpoint-based; and
2. Is reasonable
b. Just have to show that they didnt take sides
1. Can say no protests about war, but not no
protests against war
E. Intl Society for Krishna Consciousness v. Lee (1992) (Rehnquist)
1. Uses Perry Test airport is not a traditional public forum
a. Invalidate leaflet ban
b. Uphold solicitation ban

F. Frisby v. Schultz (1988) (6-3) (picketing abortion doctors house)

1. Statute is not content-based despite being passed specifically for this
doctors house look at the statute on its face
G. Hill v. Colorado (1999) (Stevens)
1. Doesnt restrict a particular viewpoint or subject matter contentneutral
2. Content-neutrality is based on subject matter & face of the statute
3. Narrow tailoring
a. Tight fit between means and ends; bright-line rule is best
H. Snyder v. Phelps (2011)
1. No tort action for intentional infliction of emotional distress or invasion
of privacy where the speech is of public concern and the speaker is not
in close, aggressive proximity of targeted
2. Balance the value of speech (public concern) with interests of privacy
(if not public concern, more privacy)
I. Theory of Time, Place and Manner Restrictions (Bevier)
1. Worried about the government distorting public debate and picking
winners and losers
2. Its the job of the court to promote public debate and open more places
up to publicly promote debate
Symbolic Speech and the Speech of Protest
X. Symbolic Speech & the Speech of Protest
A. U.S. v. OBrien (1968) (Warren) (burning draft card)
1. Test for Expressive Conduct
a. A government regulation is constitutional, even if it affects
expressive conduct, if:
i. It is within the constitutional power of the government;
ii. It furthers an important or substantial government interest;
iii. The interest is unrelated to freedom of expression; AND
iv. The incidental restriction on 1st Am. freedoms is no greater
than is essential to the furtherance of that interest.
B. Texas v. Johnson (1989) (Brennan) (5-4) (flag burning)
1. Statute was content-based, so use strict scrutiny
a. Regulating speech because its speech
2. Is there a compelling governmental interest?
a. When it is, analysis goes past OBrien
b. Government doesnt get to fix the meaning of symbols
i. More than content-based: also viewpoint-based
3. Definition of expression/speech: designed to communicate a
particularized message and a great likelihood the message would be
understood
C. Time, Place and Manner & Expressive Conduct Compared
1. Tests very similar & courts arent rigorous about saying why theyre
applying which test
a. Both talk about some kind of important governmental interest,
content-neutrality and narrow tailoring
2. Both about government operating public spaces & performing
governmental functions without burdening too much speech
a. Classic ad hoc balancing of speech vs. interest

b. Take statute on its own, look to whether governmental interests

are strong enough to overcome importance of speech
3. To assess TPM and expressive conduct, courts are suspicious of laws
directed squarely at the communicative impact of something
a. And most suspicious of laws prohibiting discussion of viewpoints
and subjects
Tests for Classification of Speech Regulation
XI. Classification of Speech Regulation
A. Track I: The government regulation directly aims at communication of ideas
and information
1. Categories (concerned with these because theyre things we dont like)
a. Incitement
b. Fighting words
c. Defamation
d. Obscenity
e. Threats
2. Topics/Subject Matter
a. Race
b. Religion
c. Politics
d. War
3. Viewpoints
a. I hate America
b. No speech against the war
4. How think about everything on this track:
a. Usually a very high burden for the government to meet
b. Almost always strict scrutiny
i. Compelling interest; and
ii. Narrow tailoring
B. Track II: The government regulation aims at a general end and only indirectly
burdens communication
1. Content-neutral time, place and manner regulation
a. Reasons: no littering, no traffic obstruction, etc.
i. Not directly aimed at speech, aimed at a different end
ii. Just happens to burden speech
b. Expressive conduct regulations that only incidentally burden
expression
i. i.e., no draft card destruction
2. Easier burden for the government to meet (Perry test)
Protection of Commercial Speech
XII.

Protection of Commercial Speech

A. Virginia State Board of Pharmacy (1976) (Blackmun) (drug prices)
1. Money alone doesnt mean no protection for speech
2. 2 interests to protect in communicative speech: individual (people
need the information) & societal (good information for good economic
decisions)

3. Commercial speech gets some protection

B. Central Hudson Gas & Elec. Corp. v. Public Service Commn (1980)
(Powell)
1. In order to be a constitutionally appropriate regulation of commercial
speech:
a. The message content must be concerned with lawful activity and
not deceptive;
b. The governmental interest must be substantial;
c. The regulation must directly advance the interest; AND
d. The regulation must not be more expansive than is necessary to
achieve the interest.
2. If speech is concerned with unlawful activity or deceptive, no
protection.
C. Lorillard Tobacco v. Reilly (2001) (OConnor)
1. Tobacco ad regulations not narrowly tailored
The Difference Between Commercial Speech & Political Speech
XIII.

Commercial Speech vs. Political Speech

A. Buckley v. Valeo (1976) (per curium) (campaign finance)
1. Standard of Review
a. This was regulating expression
i. When youre donating money to a political campaign, you
are politically expressing yourself
ii. So money can be speech
b. Must give it exacting scrutiny because related to expression
2. Holding: Contribution limit upheld, expenditure limitations struck down
B. Citizens United v. Federal Elections Commission (2010) (Kennedy)
1. Buckley said campaign expenditure restrictions were invalid, and this is
a campaign expenditure restriction, so its invalid
2. The marketplace of ideas functions best when the government lets it
operate
3. Corporate speech is not necessarily commercial

Obscenity and Pornography

XIV.

Obscenity
A. Roth v. U.S. (1957) (6-3)
1. Obscenity is unprotected speech
2. Speech is obscene when:
a. To the average person,
b. Applying contemporary community standards,
c. The dominant theme of the material taken as a whole
d. Appeals to the prurient interest
B. Stanley v. Georgia (1969) (9-0) (porn in your house)
1. Privacy is important; cant give the government the power to control
mens minds
C. Miller v. California (1973) (Burger)
1. New Test for Obscenity:

a. Whether the average person, applying contemporary community

standards, would find that the work, taken as a whole, applies to
the prurient interest
b. Whether the work depicts or describes in a patently offensive
way, sexual conduct specifically defined by state law
c. Whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value
2. Brennan & Douglas Dissents: Everything is too vague and
unpredictable
XV.

Child Pornography
A. New York v. Ferber (p.144) (1982) (White)
1. Child pornography gets no constitutional protection
2. Different because of harm to children
a. Record lasts for ever; abuse of children
b. Possession creates a chain of production
3. No protection even if doesnt meet the definition of obscenity
B. Ashcroft v. Free Speech Coalition (2002) (Kennedy)
1. Because law is restricting digital pornography and actors who are over
18, have to show compelling interest
a. Not the real thing and not connected enough to create an
appetite for child pornography
2. Government may not suppress lawful speech as the means to suppress
unlawful speech

XVI.

Pornography
A. Renton v. Playtime Theatres (p.212) (1986) (Rehnquist)
1. Treats ordinance as content-neutral even though its clearly contentbased
a. Because not content-based, no strict scrutiny
2. Test
a. Substantial government interest (concern over secondary effects
of crime, prostitution, etc.); and
b. Left available reasonable alternative avenues/channels of
communication
B. Geles v. Alameda Books (1986) (OConnor)
1. Majority: content-neutral
2. Kennedy Concurrence: Of course its content-based, just call it that
3. Souter Dissent: Not just content-based, also viewpoint-based
a. Statements about being sexually explicit, active and adventurous
b. If you burden these establishments more, youre making a
statement about the types of movies theyre showing

Broadcasting, Indecency, the Airwaves and Beyond

XVII.

Broadcasting
A. Red Lion Broadcasting Co v. FCC (1969)
1. Broadcasting is different scarcity of the broadcast spectrum
2. Broadcasters are public fiduciaries
a. The most important 1st Am. actor is the audience

b. Audience deserves a marketplace of ideas

B. FCC v. Pacifica (1978) (Stevens) (Carlin monologue)
1. Holding
a. Doesnt meet the standard for obscenity, but its indecent
i. Not unprotected, but also not a step towards truth in the
marketplace of ideas
b. Speech on broadcast tv and radio can be regulated
i. Pervasive & intrusive medium
ii. Uniquely accessible to children
c. Listener-centric, not speaker-centric (rights of audience > rights
of speaker/broadcaster)
d. Narrow holding: time of day, broadcast, repetitive, light penalty
2. Brennan Dissent: One mans vulgarity is another mans lyric
C. Post-Pacifica
1. What is indecent speech?
a. Language or material that depicts or describes, in terms patently
offensive, as measured by contemporary community standards
for the broadcast medium, sexual or excretory actions or organs
D. In re Complaints Against Golden Globe Awards (2004)
1. FCC says: Use of words like fuck is inherently sexual and patently
offensive
a. When children are around, ti is always patently offensive to use
the f-word
b. Fleeting expletive rule
i. All that matters is that he said it, even if in a fleeting
matter
2. Holding
a. FCC rule is arbitrary & capricious FCC needs some kind of
rulemaking scheme; indicated 1st Am. problems
b. Case sent back down, 2d. Cir. said indecency standard is
unconstitutional
i. FCC didnt petition cert
XVIII.

Cable Television
A. U.S. v. Playboy Ent. Corp. (2000) (Kennedy)
1. Congress cant require a safe harbor for cable its different
2. Strict scrutiny for cable regulations (compelling interest + narrow
tailoring)

XIX.

The Internet
A. ACLU v. Reno (PDF) (1997) (Stevens)
1. Court immediately suspicious content-based statute with criminal
sanctions
a. Okay to prohibit obscenity, but also talks about indecent
messages and patently offensive communications
b. No exception for literary or artistic value
B. Ashcroft v. ACLU (2004) (Kennedy)
1. Congress tried to fix Child Online Protection Act, focused on indecent
speech harmful to minors & defined indecent more carefully
2. Content-based, so use strict scrutiny
a. Compelling interest probably exists protecting children

b. Not narrowly tailored for strict scrutiny needs to be least

restrictive means available
i. Filters would be less restrictive & burden less speech