The First Amendment

gilly's version from 2011-06-07 21:36


Content-based Restrictions

Content-based restrictions on speech generally must meet strict scrutiny. Two types of content-based laws:
subject matter restrictions are regulations in which the application of the law depends on the topic of the message
viewpoint restrictions are regulations in which the application of the law depends on the ideology of the message

Content-neutral Restrictions

Content-neutral laws burdening speech generally only need to meet intermediate scrutiny (i.e. no parades allowed)

Prior Restraints

Court orders suppressing speech must meet strict scrutiny. Procedurally proper court order MUST be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it on constitutional grounds.


The government can require a license for speech ONLY if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes MUST contain procedural safeguards such as prompt determination of requests for licenses and judicial review.

Vagueness and Overbreadth

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated.
Ex: fighting word laws are unconstitutionally vague and overbroad

Symbolic Speech

The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
Flag burningprotected speech
Draft card burningnot protected due to important interest
Nude dancingnot protected
Cross burningprotected unless with intent to threaten
Political contribution limitsnot protected
Campaign expenditure limitsprotected


Anonymous speech is protected


Speech by the government cannot be challenged as violating the First Amendment


Incitement of Illegal Activity

The government may punish speech if there is a substantially likelihood of imminent illegal activity AND the speech is directed to causing imminent illegality

Obscenity and Sexually-Oriented Speech

The Test:
The material must appeal to the prurient interest (using a local standard)
The material must be patently offensive under the law prohibiting obscenity (defined)
Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (social value determined using a national standard)


The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters


Child pornography may be completely banned, even if not obscene


The government may not punish private possession of obscene materials, but the government may punish private possession of child pornography


The government may seize the assets of businesses convicted of violating obscenity laws


Profane and indecent speech is generally protected
Over the broadcast media (uniquely intrusive into the home; cf. cable tv)
In schools (schools responsible for teaching civilized discourse)

Commercial Speech

Advertising for illegal activity and false and deceptive ads are NOT protected


True commercial speech that inherently risks deception can be prohibited
The government may prevent professionals from advertising or practicing under a trade name (to discourage deception)
The government may prohibit attorneys from in-person solicitation of clients for profit
The government may not prohibit accountants from in-person solicitation for profit


Other commercial speech can be regulated if intermediate scrutiny is met (truthful ads lawfully transmitted)


Government regulation of commercial speech must be narrowly tailored, but it does not need to be the Least Restrictive Alternative (LRA)


PlaintiffLiability StandardDamagesBurden of Proof
Public OfficialActual MaliceCompensatory Presumed/Punitiveπ must prove falsity of statement
Public FigureActual MaliceCompensatory Presumed/Punitiveπ must prove falsity of statement
Private Figure, Matter of Public ConcernNegligence and Actual InjuryCompensatory (actual malice for punitive damages)π must prove falsity
Private Figure, Matter of Private ConcernUnclear (negligence)Compensatory (no actual malice req'd)unclear - burden on ∆ to prove truth


Speech by Government Employees


placesubject matter neutral?viewpoint neutral?method of regulation allowed?interest required?LRA required?
public forumYESYEStime, manner, placeimportant (adequate alternative required)NO
designated public forumYESYEStime, manner, placeimportant (adequate alternative required)NO
limited public forumNOYESreasonablelegitimateNO
non-public forumNOYESreasonablelegitimateNO
Public forums are properties that the government is constitutionally required to make available for speech (i.e. sidewalks and parks)
Designated public forums are properties that the government chooses to open to speech (i.e. school facilities on evenings and weekends)
Limited public forums are properties limited to certain groups or subjects (i.e. bus advertisements or university student groups)
Non-public forums are properties that the government constitutionally can and does close to speech (i.e. military bases, airports, outside prisons and jails, and sidewalks in front of the post office)


NB: there is NO 1st Amendment right to use private property for speech purposes
NB: City officials CANNOT have discretion to set permit fees for public demonstrations


Laws that punish or prohibit group membership must meet strict scrutiny
To punish membership in a group it must be proven that the person:
Actively affiliated with the group;
Knowing of its illegal activities; and
With the specific intent of furthering those illegal activities


Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny (i.e. NAACP in Alabama in the 1940s)


Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association (i.e. a small gathering) or expressive activity (i.e. Boy Scouts, KKK, Nazis))


The Free Exercise Clause

The free exercise clause CANNOT be used to challenge a neutral law of general applicability
Laws that are targeted toward a particular religion or religion/non-religion generally must withstand strict scrutiny


The government may not deny benefits to individuals who quit their jobs for religious reasons

The Establishment Clause

The Lemon Test (a regulation is constitutional only if ALL prongs are met):
    1. There is a secular purpose for the law
    2. The effect must be to neither advance nor inhibit religion (secular effect)
    3. There must not be excessive entanglement with religion


The government CANNOT discriminate against religious speech or among religions unless strict scrutiny is met


Government sponsored religious activity in public schools is unconstitutional.
But religious student and community groups must have the same access to school facilities as non-religious groups


The government may give assistance to parochial schools so long as it is not used for religious instruction. The government may provide parents with vouchers for parochial schools.