Freedom of Speech

This is an outline of the topics and cases interpreting the free speech clause of the First Amendment.

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Freedom of Speech by Mind Map: Freedom of Speech

1. Overbreadth

1.1. Broadrick v. Oklahoma, 413 U.S. 601 (1973)

1.2. Is the statute substantially overbroad?

1.2.1. Nat'l Ass'n for the Advancement of Colored People v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)

1.3. Can the statute be construed in such a way as to limit is application?

1.3.1. Has the statute been given a limiting construction by a lower court that makes the statute constitutional?

1.3.2. Can the current court give the statute a limiting construction that takes the case outside the scope of the overbreadth doctrine?

1.3.3. Is the challenged statute an ordinary criminal law that is being challenged because of its application to protected conduct? If so, application of the doctrine may be curtailed so as not to strike down the entire law.

1.4. Does the danger of infringing on protected speech outweigh any interest of the state in passing a statute or undertaking an action?

1.4.1. Is the proscribed speech more similar to "pure speech" or to expressive conduct?

1.4.2. Is there a "realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court."

1.4.2.1. Members of the City Council of L. A. v. Taxpayers for Vincent, 466 U.S. 789, (1984).

1.5. Selective Application

1.5.1. Does the law condition an exercise of a First Amendment right on the obtainment of a license or permit?

1.5.1.1. Does the permitting process:

1.5.1.1.1. have narrow, objective, and definite standards that prevent the arbitrary or selective application of the law in a way that does not implicate an applicants First Amendment freedoms?

1.5.1.1.2. involve an appraisal of facts, the exercise of judgment by a government official, or licensing approval based upon the formation of an opinion as to the content of protected speech of an applicant; and does this process risk the danger of censorship and of abridgment of speech in the denial of such a permit or license?

2. Is the government acting as a regulator of speech?

2.1. Content-Based Discrimination

2.1.1. Content-Based Discrimination

2.1.1.1. What is content-based discrimination?

2.1.2. Viewpoint Based Discrimination

2.1.2.1. What is viewpoint based discrimination?

2.1.2.1.1. Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 820, 115 S. Ct. 2510, 2512, 132 L. Ed. 2d 700, 709 (1995)

2.1.2.1.2. Viewpoint based discrimination is a subset of content-based discrimination. All laws that discriminate on the basis of viewpoint discriminate on the basis of content, but not all laws that discriminate on the basis of content discriminate on the basis of viewpoint.

2.1.3. What standard of scrutiny applies to a law that is content-based?

2.1.3.1. Brown v. Entertainment Merchants Assn., 131 S.Ct. 2729, 2738, 180 L. Ed. 2d 708, 720, 2011 BL 168066, 7 (2011)

2.1.3.2. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226, 192 L. Ed. 2d 236, 245, 2015 BL 193925, 6 (2015)

2.2. Content-Neutral Regulations

2.2.1. Content-Neutral Regulation of Expressive Conduct

2.2.1.1. When can expressive conduct be considered speech?

2.2.1.1.1. Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 2535, 105 L. Ed. 2d 342, 348 (1989)

2.2.1.1.2. Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661, 674 (1989)

2.2.1.1.3. United States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 1678, 20 L. Ed. 2d 672, 679 (1968)

2.2.1.2. A regulation of expressive conduct will be considered constitutional if the regulation can be justified without reference to the content of the speech it restricts and the incidental restriction is:

2.2.1.2.1. Within the constitutional power of the government;

2.2.1.2.2. Furthers an important or substantial governmental interest;

2.2.1.2.3. Such governmental interest is unrelated to the suppression of free expression; and

2.2.1.2.4. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest

2.2.1.2.5. United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)

2.2.2. Reasonable Time, Place, or Manner Restrictions

2.2.2.1. What is a reasonable time, place or manner restriction?

2.2.2.1.1. Sharkey's, Inc. v. City of Waukesha, 265 F. Supp. 2d 984, 987 (E.D. Wis. 2003)

2.2.2.2. What standard of review is applicable to time, place or manner restrictions?

2.2.2.2.1. Justified without reference to the content of the regulated speech

2.2.2.2.2. Narrowly tailored

2.2.2.2.3. Serve a significant governmental interest

2.2.2.2.4. Leave open ample alternative channels for communication of the information

2.2.2.2.5. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221, 227 (1984)

2.2.2.3. Secondary Effects Doctrine

2.2.2.3.1. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29, 33 (1986)

2.3. Categorical Exceptions

2.3.1. Distinguishing categorically excepted speech from protected speech

2.3.1.1. Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971)

2.3.2. Threats and Fighting Words

2.3.2.1. Fighting Words

2.3.2.1.1. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031, 1942 BL 241 (1942)

2.3.2.2. True Threats

2.3.2.2.1. Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 1400, 22 L. Ed. 2d 664, 666 (1969)

2.3.2.2.2. Shackelford v. Shirley, 948 F.2d 935 (5th Cir. 1991)

2.3.2.3. Content-Based Distinctions Within Categorical Exceptions

2.3.2.3.1. R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 2540, 120 L. Ed. 2d 305, 313 (1992)

2.3.3. Obscenity

2.3.3.1. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L. Ed. 2d 1498 (1957)

2.3.3.2. The Miller Test

2.3.3.2.1. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 2610, 37 L. Ed. 2d 419, 425 (1973)

2.3.3.2.2. Prurient interest

2.3.3.2.3. Patently Offensive

2.3.3.2.4. Lack of serious literary, artistic, political or scientific value

2.3.3.3. Child Pornography

2.3.3.3.1. New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 3349, 73 L. Ed. 2d 1113, 1116 (1982)

2.3.4. Subversive Advocacy

2.3.4.1. The Brandenburg Test

2.3.4.1.1. Directed To

2.3.4.1.2. Inciting or Producing

2.3.4.1.3. Imminent Lawless Action

2.3.4.1.4. And Likely to Produce Such Action

2.3.4.1.5. Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969)

2.3.4.2. Clear and Present Danger

2.3.4.2.1. Likelihood

2.3.4.2.2. Imminent

2.3.4.2.3. Significant Harm

2.3.4.2.4. Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919)

2.3.4.3. Reasonableness Test

2.3.4.3.1. Not currently in force, see J. Holmes dissent in Gitlow

2.3.4.4. The Risk Formula Approach

2.3.4.4.1. Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951)

2.3.5. Defamation

2.4. Lesser Protected Categories

2.4.1. Commercial Speech

2.4.1.1. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980)

2.4.1.2. The Central Hudson Test

2.4.1.2.1. Is the speech being regulated proposing an economic transaction, or does it more properly belong in another category of speech?

2.4.1.2.2. If the speech is commercial speech, what is the governmental interest being proposed that justifies the restriction on speech? Is this interest legitimate, important, substantial, or compelling? Interests that lie more towards the compelling end of this spectrum tend to be given greater deference than those that lie toward the legitimate end of the spectrum.

2.4.1.2.3. Does the regulation directly advance the interest being claimed by the government, or is it merely incidental to the interest? The more direct the relationship between the interest and the regulation, the better the argument well be for having a well-tailored regulation.

2.4.1.2.4. Is there a less restrictive way of advancing the government's interest? If so should the court invalidate the law because the government failed to use the least restrictive means of furthering its interest, or is the use of a less restrictive rather than least restrictive means sufficient for the purposes of the case at hand?

2.4.1.3. Interested in learning more about the commercial speech doctrine, then follow the link to visit "Advertising and Commercial Speech: A First Amendment Guide," available on Bloomberg Law.

2.4.2. Corporate Speech

2.4.2.1. Independent Expenditures

2.4.2.1.1. What interests have been cited in regulating independent expenditures made by corporations in support of political causes/candidates?

2.4.2.2. Direct Contributions

2.4.2.2.1. What interests have been cited in the regulation of corporate contributions to political causes/candidates?

2.4.2.3. DIsclosure of Contributions and Expenditures

2.4.2.3.1. What interests have been cited in the attempt to mandate disclosures of corporate expenditures and contributions made in support of political causes/candidates?

3. Check Out Bloomberg's News Search For the Latest News on Litigation Dealing With the First Amendment

4. Is the Government acting as speaker or provider of a forum for speech

4.1. Reasonable Time, Place and Manner Restrictions

4.1.1. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29, 33 (1986)

4.2. Traditional Public Forums

4.2.1. What is a traditional public forum?

4.2.2. What standard applies to regulations seeking to restrict access to or speech in traditional public forums

4.2.2.1. If regulation is content based

4.2.2.1.1. Necessary to serve a compelling state interest

4.2.2.1.2. Narrowly drawn to achieve the state interest

4.2.2.2. If regulation is a content-neutral time, place or manner restriction on speech

4.2.2.2.1. Justifiable without reference to content of speech

4.2.2.2.2. Serve a significant government interest

4.2.2.2.3. Narrowly tailored to that interest

4.2.2.2.4. Leave open alternative channels of communication

4.3. Designated Public Forums

4.3.1. Limited Public Forums

4.4. Non-Public Forums

5. Try Your Hand at a Contemporary Free Speech Conundrum - The Washington Redskin's Trademark Cancellation Suit

5.1. The Background

5.1.1. What is a trademark

5.1.2. The Initial Registration of the Redskin's Mark and its Cancellation

5.1.3. The Procedural History of the Trademark Litigation

5.1.4. The Current Controversy

5.1.4.1. Pro-Football, Inc. v. Blackhorse, No. 1-14-CV-01043-GBL, 115 U.S.P.Q.2d 1524 (E.D. Va. July 8, 2015).

5.2. Issues Raised By the Suit

5.2.1. Whether a trademark is speech for the purposes of the First Amendment.

5.2.2. Whether the disparagement clause infringes on speech, and if so, whether the clause can be challenged under the overbreadth doctrine or on the theory that it is unconstitutionally vague.

5.2.3. Whether the disparagement clause of the Lanham Act violates the First Amendment by being an impermissible content-based restriction on speech.

5.2.4. Whether the government can impose viewpoint based restrictions on awarding trademark registrations because trademarks are a form of government speech.

5.2.5. Whether withholding trademark protections from applicants by conditioning the grant of trademark protection upon compliance with the Lanham Act invalidates the act under the doctrine of unconstitutional conditions.

5.3. The Briefs