First Amendment

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First Amendment by Mind Map: First Amendment

1. Free Speech Methodology

1.1. Content Based and Content Neutral Laws

1.1.1. Government can't regulate speech based on its content: content based regulations are presumptively invalid; government must be point of view neutral and subject matter neutral.

1.1.1.1. The fact that a law is content-based alone is not enough to make it unconstitutional, it has to meet strict scrutiny too.

1.1.1.1.1. Turner Broadcasting System v. FCC, 512 U.S. 622 (1994): Strict Scrutiny is used for content-based restrictions. Note: Intermediate Scrutiny is used for content-neutral laws.

1.1.1.1.2. Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015): holding government regulation of speech qualifies as content-based if a law applies to particular speech, as the topic discussed or the idea or message expressed.

1.1.1.1.3. Williams v. Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (strict-scrutiny met): holding since public perception of judicial integrity is a state interest of the highest level, that The court held that the State of Florida had a compelling interest in adopting the Florida Conduct Code provision that prohibited candidates in judicial elections from personally soliciting campaign funds.

1.1.1.2. Viewpoint neutral: government can't regulate based on the ideology of the message

1.1.1.2.1. Boos v. Barry, 485 US 312 (1988)

1.1.1.3. Subject-matter neutral means the government cannot regulate speech based on the topic of the speech.

1.1.1.3.1. Carey v. Brown, 447 US 455 (1980) (holding an ordinance prohibiting picketing in residential neighborhoods, unless it was labor picketing connected to a place of employment. ( The law permitted the speech if it was about labor but not otherwise.)

1.1.1.3.2. Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 US 105 (1991) (holding state law invalid as it prevented those accused of or convicted of a crime from profiting from that crime; any funds from that crime were to be placed in escrow and used to compensate victims.

1.1.1.4. Content Neutrality: at a minimum, the government cannot regulate speech based on its viewpoint or its subject matter, unless strict scrutiny is met.

1.1.1.4.1. Police Department of the City of Chicago v. Mosley, 408 US 92 (1972): Holding government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.

1.1.1.4.2. Carey v. Brown, 447 US 455 (1980): Holding: IL statute unconstitutional that prohibited picketing or demonstrations in or around a person's residence, unless the dwelling is used as a place of business or is a place or employment involved in a labor dispute. Court applied equal protection.

1.1.1.4.3. Frisby v. Schultz, 487 US 474 (1988): Holding: upheld ordinance prohibited picketing "before or about" any residence. The law was permissible bc it was content-neutral and narrowly tailored to protect people's tranquility and repose in their homes.

1.1.2. Problems in Applying the Distinction Between Content-Based and Content-Neutral Laws

1.1.2.1. 1. Does a permissible purpose for a law prevent a court from finding it is content-based, even if a content restriction is on the face of the law?

1.1.2.1.1. A facial content-based restriction will be deemed content-neutral, if it is motivated by a content-neutral purpose.

1.1.2.1.2. City of Renton v. Playtime Theatres, Inc. 475 US 41 (1986): A city ordinance limiting adult entertainment establishments to one corner of the city occupying less than 5% of the city’s area was constitutional.

1.1.2.2. 2. Situations in which the government must make content-based choices.

1.1.2.2.1. National Endowment for the Arts v. Finley, 524 US 569 (1998) holding: Facial challenges to speech legislation are generally disfavored. To prevail, there must exist evidence of a substantial risk that applying the provision will lead to the suppression of speech.

1.1.2.2.2. Also note: United States v. American Library Association, 539 US 194 (2003): holding federal law constitutional that required libraries receiving federal funds to install filters to block sexually explicit content on their computers.

1.1.2.3. 3. First Amendment does not always apply if the government is the speaker or even adopts private speech as its own.

1.2. Government Properties and Speech (Time, Place, and Manner)

1.2.1. Davis v. Massachusetts, 167 US 43 (1897): Courts have initially rejected any claim of a right to use government property for speech purposes. At issue: Boston ordinance prohibiting "any public address" on publicly owned property "except in accordance with a permit from the mayor." Holding: ordinance constitutional as the gov has the right to control the use of its property

1.2.2. Hague v. Committee for Industrial Organization, 307 US 496 (1939): holding the ordinance which prohibited public parades or assemblies without a permit, was void on its face, since as it was drafted it permitted arbitrary suppression of speech.

1.2.3. Schneider v. New Jersey, 308 US 147 (1939): holding the purpose of the ordinances to keep the streets clean and of good appearance was insufficient to justify prohibiting defendants from handing out literature to other persons willing to receive it.

1.2.4. What Government Property and Under what Circumstances?

1.2.4.1. Perry Education Association v. Perry Local Educator's Association, 460 US 37 (1983) Holding: In the quintessential public forums, the gov may not prohibit all communicative activity. A second category exists for public property which the state has voluntarily opened for use by the public as a place for expressive activity. A third category is public property which is not by tradition or designation a forum for public communication is governed by different standards.

1.2.4.1.1. See Christian Legal Society v. Martinez, 561 US 661 (2010) (also defining these categories): public forums, designated public forums, limited public forums. The constitutionality depends on the place and nature of the government's action.

1.2.4.2. Public Forums (pg. 1594)

1.2.4.2.1. The government may regulate speech in public forums in three instances: 1. The regulation must be content-neutral unless the government can justify a content-based restriction by meeting strict scrutiny. 2. It must be a reasonable time, place, or manner restriction that serves an important government interest and leaves open adequate alternative places for speech. 3. A licensing or permit system for the use of public forums must serve an important purpose, give clear criteria to the licensing authority that leaves almost no discretion, and provide procedural safeguards such as a requirement for prompt determination of license requests and judicial review of license denials. The court has ruled that government's regulation of speech in public forums need not use the least restrictive alternative, although they must be narrowly tailored to achieve the government's purpose.

1.2.5. Cases

1.2.5.1. Heffron v. International Society for Krishna Consciousness, 452 US 640 (1981): Holding: time, place, and manner restrictions that are justified without regard to the content, serve a significant government interest and learn open ample alternative channels for communication of the information. Concerned: Minnesota state fair prohibited the distribution of literature and solutions--content-neutral bc regardless of person/purpose.

1.2.5.2. Grayned v. Rockford, 408 US 104 (1972): Holding: upheld city ordinance prohibiting noise or disruption near a school

1.2.5.3. Clark v. Community for Creative Nonviolence, 468 US 288 (1984) Holding: upheld federal regulation and Park Service decision to keep a group protesting the plight of homelessness from sleeping in the park.

1.2.5.4. Brown v. Louisiana, 383 US 131 (1966): Holding: silent sit in by Blacks in a segregated public library; court reversed--ruling against the government.

1.2.5.5. United States v. Grace, 461 US 171 (1983): Holding: unconstitutional a broad restriction of speech on the public sidewalks surrounding the SCOTUS building.

1.2.5.6. Hill v. Colorado, 530 US 703 (2000) upheld law: holding the statute did not violate the First Amendment as (1) the statute was content-neutral, as it did not restrict either a particular viewpoint or any subject matter; (2) the statute was sufficiently, narrowly tailored to serve significant and legitimate state interests; (3) the statute's coverage was broader than the specific concern that led to its enactment did not make it unconstitutionally overbroad; (4) the statutory phrases relating to "protest, education, or counseling," "consent," and "approaching" were not unconstitutionally vague; and (5) the statute did not impose an unconstitutional prior restraint on speech.

1.2.5.7. Kovacs v. Cooper, 336 US 77 (1949): Holding: a restriction on the use of sound amplification devices--reasonable time, place, and manner restriction.

1.2.5.8. McCullen v. Coakley, 134 S. Ct. 2518 (2014): holding The Massachusetts Act violated the First Amendment as the statute was not narrowly tailored to serve significant governmental interests where the zones compromised the petitioners' abilities to engage in sidewalk counseling and distribute literature to arriving patients.

1.2.6. Time, Place, and Manner Restrictions

1.2.6.1. Licensing and Permit Systems

1.2.6.1.1. Cox v. New Hampshire, 312 US 569 (1941): Holding: ordinance requiring a permit for a parade, only denied if another group already reserved that area.

1.2.6.1.2. Lovell v. Griffin, 303 US 444 (1938): Holding: unconstitutional ordinance prohibiting distribution of pamphlets without the written permission of the city manager.

1.2.6.1.3. Forsyth County, Georgia v. Nationalist Movement, 505 US 123 (1992): Holding: unconstitutional ordinance that required a permit for a demonstration that allowed gov officials to charge a permit fee of up to $1,000. BC of discretion of the amount.

1.2.6.2. No Requirement for Use of Least Restrictive Alternative

1.2.6.2.1. Ward v. Rock Against Racism: Holding when the gov regulates speech in the public forum, it need not use the least restrictive alternative, although any regulation must be narrowly tailored.

1.2.6.3. Designated Public Forums

1.2.6.3.1. If the public schools and universities open their property for use by student and community groups, they cannot exclude religious groups.

1.2.6.4. Limited Public Forums

1.2.6.4.1. Christian Legal Society v. Martinez, 561 US 661 (2010): Limited public forums by opening property "limited to use by certain groups or dedicated solely to the discussion of certain subjects."Holding: the student groups at a public university had to accept all members and deny recognition of groups discriminating on religion or sexual orientation.

1.2.6.5. Nonpublic Forums

1.2.6.5.1. Adderly v. Florida, 385 US 39 (1966): Holding: gov could prohibit speech in the areas outside prisons and jails

1.2.6.5.2. Greer v. Spock, 424 US 828 (1976): Holding: military bases are a nonpublic forum, even public areas.

1.2.6.5.3. United States v. Kokinda, 497 US 720 (1990): Holding: upheld a restriction on solicitations on post office properties

1.2.6.5.4. International Society for Krishna Consciousness v. Lee, 505 US 672 (1992): Holding: Airports are not traditional public forums as their traditional purpose was not to promote the free exchange of ideas, but to facilitate travel. So, the regulation needed to only be reasonable. It was reasonable as it promoted the interest in crowd control and efficient air travel by limiting solicitation to the areas outside of the airport terminals.

1.2.6.6. Private Property and Speech

1.2.6.6.1. Most of the cases concerning a right to use private property for speech have concerned claims of a right to use privately owned shopping centers for expression. SCOTUS originally recognized this right and then overruled it.

1.3. Conduct that Communicates

1.3.1. SCOTUS has long protected conduct that communicates under the First Amendment.

1.3.1.1. Stromberg v. California, 283 US 359 (1931): Holding state law unconstitutional that prohibited the display of a "red flag"

1.3.1.2. West Virginia State Board of Education v. Barnette: Holding state statute impermissibly compelled expression and emphasized that saluting, or not saluting a flag is a form of speech.

1.3.2. When is conduct communicative?

1.3.2.1. Spence v. Washington, 418 US 405 (1974): Holding: A "kernal" of expression does not arise to be within the threshold of the First Amendment.

1.3.2.1.1. Analysis: Two factors to decide if conduct qualifies as communicative: 1. "An intent to convey a particularized message was present" INTENT 2. "…and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." SUBSTANTIAL LIKELIHOOD THAT THOSE RECEIVING THE MESSAGE WOULD UNDERSTAND THE MESSAGE.

1.3.3. When May the Government Regulate Conduct that Communicates?

1.3.3.1. United States v. O'Brien, 391 US 367 (1968): The O'Brien Test: Whether the government has a sufficient justification for regulating the conduct? A government regulation is sufficiently justified if it: Is within the constitutional power of the government; --If it furthers an important or substantial government interest; -- If the government interest is unrelated to the suppression of free expression; --And if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

1.3.3.2. Flag Desecration: The O'Brien Test Applied

1.3.3.2.1. Street v. New York, 394 US 576 (1969) Overturned a conviction of an individual who burned a flag after learning James Meredith was shot. Holding law was unconstitutional as it allowed someone to be punished for solely speaking contemptuously about the flag. Impossible to tell if the punishment was for the speech about the flag or its destruction.

1.3.3.2.2. Smith v. Goguen, 415 US 566 (1974): Holding unconstitutional on vagueness a state law that made it illegal when an individual "publicly mutilates, tramples upon, defaces, or treats contemptuously the flag of the United States."

1.3.3.2.3. Texas v. Johnson, 491 US 397 (1989) (court goes further than Spence v. Washington): Holding: In deciding whether particular conduct possesses sufficient communicative elements, issue of whether an intent to convey a particularized message existed, and whether the likelihood was great that the message would be understood by those who viewed it. state's interest in preventing breaches of the peace did not support respondent's conviction because his conduct did not threaten to disturb the peace. Additionally, the state's interest in preserving the flag as a symbol of nationhood did not justify the criminal conviction for engaging in political expression.

1.3.3.2.4. States v. Eichman, 496 US 310 (1990): Holding Flag Protection Act of 1989 was unconstitutional as it's purpose was to keep the flag from being used to communicate protest or dissent.

2. Associational Rights and Prohibitions under the First Amendment.

2.1. Associational Rights

2.1.1. NAACP v. Claiborne: Holding: Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.

2.1.2. Laws Prohibiting and Punishing Membership

2.1.2.1. Scales v. United States: Holding: The government may punish membership only if it proves that a person actively affiliated with the group, knowing of its illegal objectives, and with the specific intent to further those objectives.

2.1.2.2. Noto v. United States: Holding: In the absence of illegal advocacy, cannot punish membership.

2.1.2.3. Communist Party of Indiana v. Whitcomb: Holding: The government may deny public employment to someone based on group affiliation or require that someone take an oath concerning group affiliation, only if it is limited to situations where the individual activity affiliated with the group, knowing of its illegal activities, and with the specific intent to further those illegal goals.

2.1.2.4. Elfbrandt v. Russell: Holding: State's loyalty oath declared unconstitutional the prohibited anyone from holding office that was a member of a group like the Communist Party.

2.1.2.5. Keyishian v. Board of Regents: Holding: State law unconstitutional that denied employment to teaches who were a part of orgs that want to overthrow the government.

2.1.2.6. Bar Membership

2.1.2.6.1. Konigsburg v. State Bar: Holding: The government can deny membership to the Bar who refused to answer questions related to membership of the Communist Party

2.1.2.6.2. Baird v. State Bar and In re Stollar: Holding: Bar application questions that asked whether someone was a member of an organization that advocated for the overthrow of the government with violence, like the Communist Party are invalid

2.1.2.6.3. Law Students Civil Rights Research Council v. Wadmond: Holding: Acceptable bar question that asked if someone was a member of an organization that advocated for the overthrow of the government with violence, and whether that person had the specific intent to accomplish those goals.

2.1.3. Laws Requiring Disclosure of Membership

2.1.3.1. NAACP v. State of Alabama ex rel. Patterson: Holding forced disclosure of affiliation engaged in advocacy may qualify as an effective restraint on freedom of association. The Supreme Court recognizes the vital relationship between freedom to associate and privacy in one's associations.

2.1.3.2. Shelton v. Tucker: Holding: unconstitutional for a state law to require that all teachers disclose their group memberships on an annual basis.

2.1.3.3. Campaign Finance Disclosure

2.1.3.3.1. Buckley v. Valeo: Holding: a provision of the Federal Election Campaign Act of 1971 is upheld, despite requiring that every political candidate and political committee keep records of the names and addresses of all who contribute more than $10.

2.1.3.3.2. Brown v. Socialist Workers '74 Campaign Committee: Holding: it is unconstitutional to require the Socialist Workers Party to comply with a state campaign disclosure law.

2.1.3.3.3. Citizens United v. Federal Election Commission: Holding: invalid restrictions are those on independent expenditures by corporations and unions, but upheld disclosure requirements.

2.1.4. Compelled Association

2.1.4.1. Abood v. Detroit Board of Education: Holding: valid state law requiring all local government employees to pay a union service charge

2.1.4.1.1. Keller v. State Bar of California (reaffirmed Abood): Holding: state bar dues could be used only if they were "reasonably incurred for the purpose of regulating the legal profession," or improving the service provided.

2.1.4.2. Knox v. Service Employees International Union: Holding: An opt-out choice is insufficient; nonmembers must opt-in to support the political activities of the union

2.1.4.3. Harris v. Quinn: Holding: Unconstitutional state law compelling personal assistants available through Illinois Medicaid

2.1.4.4. Board of Regents of the University of Wisconsin System v. Southworth: The First Amendment allows a public university to charge its students an activity fee to fund a program for extracurricular student speech, if the program is point of view neutral in the allocation of funding support.

2.1.5. Laws Prohibiting Discrimination

2.1.5.1. Roberts v. United States Jaycees: Holding: the right to associate for expressive purposes is not an absolute. Infringements can be justified with 1) regulations serving a compelling state interests, 2) unrelated to the suppression of ideas, 3) that cannot be achieved through means significantly less restrictive of associational freedoms.

2.1.5.2. Board of Directors v. Rotary International v. Rotary Club of Duarte: Holding: state forcing the club to admit women on the basis of nondiscrimination

2.1.5.3. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston: Holding: it violated the First Amendment to organize a parade (expressive activity) to force the organizers to include messages that they find inimical; there is a first amendment right to not speak.

2.1.5.4. Boy Scouts of America v. Dale: Holding that to determine whether a group is protected by the First Amendment's expressive associational right, a court must determine if the group engages in "expressive association." The First Amendment's protection of expressive association is NOT reserved for advocacy groups. To exist in this scope, a group must engage in some form of expression, whether it be public or private.

3. Types of Unprotected and Less Protected Speech

3.1. The court is more protective of speech (pre-Brandenberg and had no intent requirement or clearly required imminent harm.)

3.1.1. Bond v. Floyd: Holding: Georgia General Assembly cannot refuse a Representative a seat because the Representative did not support the Vietnam War and the draft.

3.1.2. Yates v. United States: Holding: not a real threat, but a political hyperbole is protected by the First Amendment.

3.1.3. Brandenburg v. Ohio: The Brandenburg Test: A conviction for indictment is constitutional, if 1)imminent harm 2) a likelihood of producing illegal action, 3) and an intent to cause imminent illegality.

3.1.3.1. Holding: Freedom of speech and press do not allow a state to forbid or proscribe advocacy of the use of force or of law violation, Test: except where such advocacy "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

3.1.3.1.1. Reasoning: Ohio's criminal statute did not draw a distinction between teaching the need for force or violence and preparing a group for violent action. The statute unconstitutionally intruded on the rights.

3.1.4. Cases Elaborating on the Bradenburg Test

3.1.4.1. Hess v. Indiana: Holding: clarifies "imminence," as a threat that does more than state an indefinite future time.

3.1.4.2. NAACP v. Claiborne Hardware Co.: Holding: mere advocacy of violence does not remove the speech's protection under the First Amendment

3.1.4.3. Holder v. Humanitarian Law Project: Holding: The prohibition in 18 U.S.C.S. § 2339B of material support or resources to foreign terrorist organizations (regarding the facilitation of allegedly lawful, nonviolent purposes) is neither vague in violation of the Fifth Amendment, nor violative of First Amendment.

3.1.4.3.1. Reasoning: The Court held that § 2339B did not require proof of intent to further a terrorist organization's illegal activities. Section 2339B was not impermissibly vague as the activity here qualified as "training" and "expert advice or assistance." Nor did § 2339B violate the First Amendment as applied. The statute did not prohibit independent advocacy, and providing seemingly benign support to a foreign terrorist organization bolstered terrorist activities. The statute did not penalize mere association.

3.2. Fighting Words, the Hostile Audience, and the Problem of Racist Speech

3.2.1. When may speech be punished as it may provoke an audience into using illegal force against the speaker?

3.2.1.1. Doctrine one: fighting words: speech directed at another that is likely to provoke a violent response

3.2.1.1.1. Chaplinsky v. New Hampshire: Holding: two situations where speech qualifies as fighting words

3.2.1.1.2. Narrowing the Fighting Words Doctrine

3.2.1.1.3. Fighting Words Laws Invalidated as Vague and Overbroad

3.2.1.2. Doctrine two: when a speaker can receive punishment for the reaction of the audience

3.2.1.2.1. The Hostile Audience Cases

3.2.2. The Problem of Racist Speech

3.2.2.1. Beauharnais v. Illinois: Holding: government can regulate racist speech (libelous utterances)

3.2.2.1.1. Based on the assumption that defamation liability is unlimited under the First Amendment

3.2.2.1.2. The speech was political speech, but it is doubtful that the Court would allow punishment for expressing opinions about racial groups of calling for government actions.

3.2.2.1.3. Reluctance to follow Beauharnais: Nationalist Socialist Party of America v. Skokie

3.2.2.2. Virginia v. Black: Holding: First Amendment protections are not absolute, and the government may regulate certain categories of expression consistent with the U.S. Constitution. The First Amendment permits restrictions for the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

3.3. Reputation, Privacy, Publicity, and the First Amendment Torts and the First Amendment

3.3.1. New York Times v. Sullivan: Holding: the First Amendment limits the ability of the government to impose tort liability. Recovery for defamation is limited by the First Amendment

3.3.1.1. Public Officials as Defamation Plaintiffs: 4 Requirements

3.3.1.1.1. 1. The plaintiff must be a public official or running for office

3.3.1.1.2. 2. The plaintiff must prove her case with clear and convincing evidence

3.3.1.1.3. 3. The plaintiff must prove falsity of the statement

3.3.1.1.4. 4. The plaintiff must prove actual malice (the defendant knew the statement was false or acted with reckless disregard of the truth).

3.3.2. Intentional Infliction of Emotional Distress

3.3.2.1. Hustler Magazine v. Falwell: Holding: recovery for IEE must meet the New York Times standards.

3.3.2.2. Snyder v. Phelps: Holding: there cannot be liability for IEE for speech protected by the First Amendment