First Amendment - Free Speech Materials

We're moving into the closing weeks of constitutional law --- only three more modules left, and this is one of them. Today we'll discuss the First Amedment's speech protections. We're going to move through this very fast, and there's a lot of it. I'm just trying to expose you to the doctrine here, there's no real time to cover the whole thing in detail; there could easily be an entire course just on the First Amendment. (In fact, there often is; I took one myself back when I was in law school.)

As you know, Justice Black had the great line about the First Amendment: "Congress shall make no law means Congress shall make no law," and as you know by now, when Justice Black is obviously right that's when he loses. So we have a bunch of rules about when Congress can, in fat, make laws limiting speech. In this video, I'm going to bang through them, with the idea that most of it, actually, is fairly straightforward; as usual we'll be doing the interesting stuff in the cases.

As you'll also see, there are a bunch of rules. In fact, I'd go so far as to say there's a never-ending list of doctrinal distinctions. This video is particularly difficult to make, because how on earth to get them all into one package? Many Con Law classes actually leave out the First Amendment altogether, on the theory that delving into all these rules in depth would be impossible to handle; I have to confess I considered it too. Of course, in our class we can get away with including it because we'll only delve into a little. (And this is also why I put this stuff after the midterm.)

Let's start with a baseline rule. Most speech regulations that matter will be "content-based." By "content-based," we just mean the government's trying to regulate the substance of what people are saying, as opposed to the way they're saying it (for example, a noise regulation isn't content-based, the government isn't regulating what people say, just how loud they say it). Content based regulations can generally be divided into two categories, "subject-matter based" ("no talking about abortion") and "viewpoint based" ("no making pro-life arguments"). Both kinds of regulation are bad, presumptively invalid, and actually get strict scrutiny. (We've seen this before, right? The First Amendment is a fundamental right! It gets strict scrutiny!) But typically we say viewpoint-based restrictions are worse, somehow. Like, we imagine they get an even stricter kind of strict scrutiny or something.

One important thing you need to understand with content discrimination is that it even can be used to invalidate regulations that otherwise prohibit conduct that the government can in fact prohibit. For example, the law "no graffiti" is totally constitutional. The law "no graffiti in favor of the democratic party" is totally unconstitutional. See the discussion in R.A.V. v. City of St. Paul, 505 U.S. 377 (1991) (cross-burning conviction under hate speech law invalidated as content-based even though gov't can obviously prohibit burning things on other people's lawns).

There's also one weird glitch in the doctrine according to which facially content-based regulations can be permissible if there's a content-neutral motivation. The Court will sometimes say those regulations are really content-neutral, even though the content is written right into the law. But this basically only applies to dirty movie theatres. I'm serious. The idea is the state can zone porn theatres out of the neighborhood based on the content of the expression in them (i.e., the porn), in order to prevent the crime that they're associated with. Renton v. Playtime Theatres, 475 U.S. 41 (1986).

We often say those rules apply to the "public forum," but the "public forum" basically means "anything except government property, plus some kinds of government property." So obviously these rules apply to speech in one's own home as well as out on the sidewalk. But in addition, they also apply in areas, like the sidewalk, that are considered part of the "traditional public forum"---the town square, the steps of City Hall, places where people typically showed up to rant about stuff. This is contrasted with kinds of government space that are not public forums. There are also "limited public forums" where the government has opened up the space for a particular category of speaker or subject (e.g., the inside of a university classroom), and there are totally non-public forums (e.g., the inside of a military base). The rules are more permissive in these categories. The doctrine here is a total mess, though, particularly on limited public forums---partly because it's hard to tell the difference between government speech (about which more below) and a limited public forum. The short version is that the government is sometimes allowed to discriminate on the basis of speakers or subjects in limited public forums. In my classroom, I can silence people who aren't students, and I can tell you to talk about constitutional law and related subjects rather than the latest episode of Game of Thrones or something, without violating the First Amendment. And in non-public forums the government can do what it wants, broadly speaking.

In public forums the government can also do reasonable time, place, and manner regulation. This basically means stuff like noise ordinances, keeping the protestors from blocking traffic, etc. Key case is Ward v. Rock Against Racism, 491 U.S. 781 (1989), basically content-neutral time, place and manner regulations get intermediate scrutiny and must leave open alternative channels for communication. The important government interest must also be unrelated to the suppression of speech. N.B. We usually say this is intermediate scrutiny, but the Court actually mixed together intermediate and strict scrutiny talk, saying "narrowly tailored to serve a substantial government interest." But then the Court (this was a Kennedy opinion, what do you expect) elaborated to say that "narrowly tailored" doesn't mean "least restrictive means." (It does mean that in the equal protection/substantive due process context. But not here.) Here's what Kennedy said:
Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.
So, we kinda read that as intermediate scrutiny, because it's the only way to make sense of it. Like I said, public forum doctrine is a mess.

But anyway. Let's get back to the baseline rule: content-based regulation gets strict scrutiny. We've already seen our first two exceptions to "no law means no law": "unless it's in a non-public forum" and "unless it's a content-neutral time place manner regulation." To gather together the rest of the million exceptions, there are two relatively sensible dimensions to organize First Amendment doctrine along. The first is the kind of speech. The second is the kind of regulation. Going in order, kind of speech first:

Speech can range from wholly unprotected to more protected, or within the core of protection.

Let's start with unprotected categories of speech. First, obscenity? We have a test, called the Miller test, but it's notoriously difficult to apply. So I'm just going to give you the standard, and then let you take comfort in the fact that this almost never comes up.

The Miller Test: a work is obscene if all of the following are true:

  1. the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
  2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
  3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The government has also occasionally tried to regulate several categories of things that deems kind of close to obscenity. "Indecency," which as far as I can tell means "slightly less dirty speech," is usually perfectly constitutionally protected, but the Court has permitted laws regulating them in very specific circumstances when it basically gets transmitted at people, particularly children, and particularly over broadcast. So regulating dirty broadcast radio, OK; regulating dirty internet, not OK. Totally unprincipled doctrine. The Court has also rejected attempts to extend the obscenity idea to violent video games, even for children. Brown v. Entertainment Merchants Association.

Enough of that. Second category: incitement. That is, incitement of illegal conduct. "Hey, guys, let's go burn down that house!" Also unprotected. The test here is called the Brandenburg Test. Also three parts, also all must be met:

  1. Harm must be imminent. No "let's burn down that house next month!"
  2. It must be likely to produce the illegal action. You can't just be some person randomly yelling nonsense, like you stand up in class and say "ok, everybody riot now!" Nobody's going to riot just because you say so.
  3. Finally, the speaker must intend to cause the illegal action.

Distinguish incitement from sort of general criminal speech. Some kinds of speech are banned under the notion that they're not really speech, they're really conduct, because they're not really being done for their expressive purposes. For example, extortion happens through talking, but it's not really speech. Nobody's going to raise a first amendment defense to the blackmail charges.

The other big classic unprotected category is "fighting words." This is speech likely to provoke a violent response from the audience. But this doctrine is almost never used, it's basically been dead for decades. Good to know about it though for the bar exam, in case you get a question that involves, I dunno, someone going to the ASPCA and talking about how great kicking puppies is or something.

Ok, on to less protected categories. First less protected category: commercial speech. This basically means advertising. Regulation of commercial speech gets intermediate scrutiny. Also, the legislature can flat-out prohibit false commercial speech (lying), and can regulate "misleading" ads; obviously, ads for illegal goods and activities are also unprotected.

There's a hot area of free speech law right now in the extent to which the government can also compel certain kinds of commercial speech, the classic example is warning labels on cigarette packages. We're not going to go into this here, but there's a very good Volokh Conspiracy post on the subject.

Ok, next category. "Expressive conduct." Classic example: burning a draft card to protest the war. Not only the classic example, but also the leading case. U.S. v. O'Brien, 391 U.S. 367 (1968). Regulation of such expressive conduct gets intermediate scrutiny, but the same kind of weird intermediate scrutiny as in Ward v. Rock, that is, based on non-speech-suppressive interests and with the confusing language that sounds kind of strict-scrutiny-ish. So in the draft card case, the regulation prohibiting their destruction was constitutional because the government actually used draft cards for, you know, administering the draft. So defendant could be punished for burning it, not in order to punish the protest, but in order to prevent people from screwing up the draft bureaucracy by torching its paperwork.

Next category. False speech, particularly defamation, but also fraud, other torts. Typically, this can be regulated, however, there are special rules for defamation, privacy torts, etc. on behalf of public figures. Short version is that the public figure plaintiff has to prove "actual malice," which is a really stupidly named doctrine, because it has nothing whatsoever to do with malice. Rather, what it means is that public figure plaintiff has to prove that defendant either knew it was false or acted with reckless disregard of truth or falsity. This is a doctrine that started with public officials, the idea being that we should be more protective of speech directed against officials, because, you know, democracy, and because defamation lawsuits are one nasty traditional way that some governments engage in political censorship---the government of Singapore is particularly notorious for this, for example, and generally the British tradition is pretty bad here. Not great for democracy: imagine if Barack Obama could sue the Republicans for saying he wasn't really born in the U.S.! But over time it got expanded to generally people who thrust themselves in the public eye, so it's now Barack Obama and Taylor Swift.

Other kinds of false speech are a little confusing. In U.S. v. Alvarez, Justice Kennedy for a plurality (Kennedy for a plurality! We're doomed.) affirmed a lower court striking down the "stolen valor act," which prohibited falsely claiming military decorations. Kennedy applied the usual strict scrutiny standard for content-based regulations, and claimed that there was no special constitutional rule permitting regulation of false speech. So there you go.

Next category: government employee speech! Can the state of Iowa fire me for my speech in the classroom? Yes: if it's on the job and within the scope of job duties, no First Amendment protection, at all. It's basically government speech then, and the government is entitled to control its own speech. Even off the job, the Court applies a balancing test, employee's interest in free speech vs. government's interest in not having the job functions undermined. And this is kind of obvious, right? The President can obviously fire the Secretary of State for secretly writing nazi propaganda or something, because, goodbye credibility of the administration.

Related category: lawyers. Truthful advertisements can't be prohibited, despite the many many attempts of bar associations to do so; the orginary commercial speech rules apply. Speech about pending cases can be regulated if it poses a substantial risk of prejudice, and we can understand this as an ordinary application of the standard doctrine (there's probably a compelling interest in running a fair justice system). One big question is to what extent lawyers can be punished for saying really nasty things about judges, which bar associations often try to do.

One more big category. You'll often hear talk about "core political speech." The idea there is that the First Amendment, if it means anything, means "protect free debate in democracy," so the courts should be extra-vigilant against restrictions of political speech. That being said, it's not clear that this is a real doctrinal category: political speech gets strict scrutiny for content-based regulations just like everything else does.

On to the "what kind of regulation" question. A few categories here too. First, government speech and government funding. We'll actually cover that in the first case of this module, Rust v. Sullivan, so I'll hold that discussion until we cover the case. When reading the case, look out for how the Court distinguishes between government funding and viewpoint discriminatory regulations; that's the part I want to focus on in class.

Compelled speech. Fairly straightforward, same strict scrutiny as in the default rule. Traditional case Wooley v. Maynard, 430 U.S. 705 (1976), state of New Hampshire can't prosecute Jehovah's Witness for covering up "live free or die" motto on license plate. (The Jehovah's Witnesses are responsible for quite a lot of our First Amendment law, actually. Another huge one is West Virginia Board of Education v. Barnette, forbidding state from requiring pledge of allegiance in school.)

Second big category is the "prior restraint." That's when the government enjoins a particular act of speech before it happens, rather than punishing it after the fact based on general laws. Prior restraint is like a burning oven, just don't touch it. Two kinds: first, a straight-up injunction. Will almost never be granted. (Maybe in cases of dire military necessity or something, like if the newspaper is about to publish the names of all the CIA agents or something.) Second case is licensure and permitting regulations, e.g., to hold a public protest on the streets. The basic rule there is that they can be permissible, but only with extremely careful procedural protections, based on objective and definite rules (i.e., like "everyone gets a permit if they apply X days in advance, pay Y fee, and nobody else has already gotten a permit for that date, and hearings have to be held within a week of application," level of rule). The idea is that too much discretion permits content-based regulation to sneak in.

One last important idea: you'll often read First Amendment cases where a law is struck down as "vague" or "overbroad." You need to know what those terms mean and the difference between them (they often appear together but are not the same idea).

A law is vague when it's not clear what speech is permitted. Vague criminal laws are, of course, already prohibited by due process, as you know from crim. But there's extra care in first amendment cases because of a fear that vague laws could create a "chilling effect" on protected speech.

By contrast, a law is "overbroad" if it's constitutional as applied to the actual person standing before the court challenging it, but would be unconstitutional applied to a lot of other people, and it's "substantially overbroad" in that it applies to lots of other constitutionally protected conduct.

To understand it, you first have to understand the difference between facial and as-applied challenges. The standard idea is that a facial challenge to a law says "the law is always unconstitutional, applied to everyone." An as-applied challenge is "the law is unconstitutional as applied to me." The difference between the two is kind of muddled, but the Court has said that facial challenges will rarely be accepted (U.S. v. Salerno, 481 U.S. 739 (1987)) For present purposes, you can think of most cases as as-applied cases, where the idea is that the law may be unconstitutional on the facts presented, but that it's possible to imagine that the law will be constitutionally applied to different facts.

Overbreadth doctrine, then, is actually best understood as a special First Amendment exception to standing doctrine! Normally, someone who brings an as-applied constitutional challenge to a law has to show that it actually is unconstitutional as applied to his or her situation, but a First Amendment plaintiff can show that even though his or her speech is unprotected, the law prohibits so much protected speech that it should go out anyway. R.A.V v. St. Paul, discussed earlier, could have gone off on an overbreadth challenge; the challengers actually asserted one (the idea being that cross-burning, not protected speech, but the hate speech law covered a whole lot of protected speech), but the Court did them one better and struck the law down under a facial challenge.

Ok, that's a pretty comprehensive overview of First Amendment speech law. There's a lot of it, and there's a good amount of stuff that I've left off, but this hits the basics, enough for you to be able to find your way around the territory, get through the bar exam, and so forth. Like I said, this is a whole class on its own; there's no way in a general con law II class to give it the attention it deserves.