The Modern Framework of Free Speech Law

1. The Modern Framework of Free Speech Law Communications Law Seminar Week 6

2. Major Building Blocks of the Supreme Court’s Free Speech Doctrine • Content Discrimination Analysis • Is a law/policy content-based or content-neutral? • Regulation of Symbolic Expression • When do laws punishing symbolic expression (such as flag burning) violate the First Amendment? • The Public Forum Doctrine • What kind of access to publicly-owned (i.e., government) property must officials give speakers? • Vagueness/Overbreadth Doctrines • Do vague or broadly written laws violate the First Amendment?

3. Content Discrimination Analysis • SCT’s content discrimination analysis moves away from the “clear and present danger” test of last class. • Instead it views a law/policy with differing levels of suspicion based on whether law/policy is considered to be content-based or content-neutral. • Two primary sub-issues arise in SCT’s content discrimination analysis • Regulation of “Low Value” speech – are there certain areas of speech that we can consider more open to regulation because they don’t really contribute to public debate? • Regulation of “High Value” speech – this speech contributes to public debate but the kind of regulation enacted has caused SCT to be more or less suspicious

4. Low Value Speech • SCT has carved out categories of speech – based on that speech’s content – stating that such speech is more easily regulated because it is “lower” in value than other speech. • SCT has not explained exactly WHY such categories of speech are lower in value although in Brown v. EMA SCTreaffirmed that such categories were (1) a result of tradition, and (2) it was unlikely to add additional categories to the existing list. • The existing low-value categories: • Incitement of Illegal Activity (Brandenburg),Threats, Libel, Fighting Words, Obscenity, Child Pornography, Commercial Speech (fraud & deception), Speech Integral to Crime (e.g., solicitation) • SCT has a test for each low value category to determine whether speech falls within it and can be regulated consistent with 1st Amdt

5. Content Discrimination and “High Value” Speech If speech does not involve a category of low value speech, it is considered by default to involve “high value speech” – i.e., speech that contributes to public discourse. • SCT reviews content-based restrictions of “high value” speech using strict scrutiny • The law must be necessary to meet a compelling state interest • Brown v. EMA notes that this is a “demanding standard.” It is “rare” that a content-based restriction will survive strict scrutiny • SCT reviews content-neutral restrictions using intermediate scrutiny • The law must be narrowly drawn to meet important state interests and leave open ample alternatives of communication

6. What are content-based and content-neutral laws? • A law is content-based if it is: • Facially content-based (regulates viewpoint or subject matter) • Facially content-neutral but has a content-based justification • E.g., A law restricting all anti-abortion protests • A law is content-neutral if it is: • Facially content-neutral • Has a justification unrelated to the speaker’s message • Traffic safety, privacy, aesthetic interests… • E.g., Law restricting protests near schools during school hours

7. Why Does the Court Disfavor Content-based Restrictions Over Content-neutral Restrictions of Speech? • Content-based restrictions distort public debate • Excise only certain speech from public debate • Government paternalism is inconsistent with 1st Amendment • Government doesn’t trust people to make decisions if it hears certain speech • Illegitimate government motive • Government officials act out of self-interest (desire to suppress criticism or viewpoints that offend them or other members of the public)

8. Regulating Content of Symbolic Expression - Texas v. Johnson Johnson involves a law regulating flag-burning, which isn’t a classic form of expression – e.g., speech, protest, newspaper, … • Because Johnson involved symbolic speech, SCT invoked a variation of the two tests we just saw to determine if the law was content-based or content-neutral. • This test is called the O’Brien test: • Is the regulation w/in the constitutional power of gov’t? • Does it further an important or substantial gov’t interest? • Is the gov’t interest unrelated to the suppression of free expression? • Is the regulation no greater than essential to the furtherance of the gov’t interest? • If the answers to all questions are “yes,” the law is constitutional. If the answer to question 3 is “no,” the law is considered to be content-based and must be judged under the standards used for those laws.

9. Texas v. Johnson – why is the Texas law related to the suppression of free expression? • The text of the statute prohibits intentionally desecrating a state or national flag (where “desecrate” is defined to mean damage in a way that actor knows will offend persons likely to observe the action). • Is the law textually related to the suppression of free expression (i.e., is it content-based)? • Gov’t interests include (1) preventing breach of the peace & (2) protecting the flag as a symbol of unity • Are those interests related to suppression of free expression? • Is Justice Rehnquist right that the Texas law merely denies Johnson a “means” to express himself and has no effect on the content of his speech? • Is Justice Stevens right that the flag burning law is no different from a law banning desecration of the Lincoln Memorial?

10. Content-Based Time, Place and Manner Regulations – the law in Brown v. EMA • Cal. Civ. Code § 1746.1(a): A person may not sell or rent a video game that has been labeled as a violent video game to a minor. • Cal. Civ. Code § 1746.1(d)(1)(A):“Violent video game” means a video game [where the options] available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that ... comes within all of the following descriptions: (i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors, (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors, (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors. • California Act regulates speech based on its content because it singles out only certain violent video games for regulation. • Unlike the laws during WWI, this law does not attempt to completely suppress “dangerous” speech. It merely regulates the manner (sale) of distribution to certain people (minor).

11. Brown – the Low Value Speech Issue • Majority opinion initially determines whether the law regulates low value speech: • Does the law regulate speech within an existing category? • Majority (and Justice Alito’s opinion) dismiss the state’s attempt to liken violent video games to obscenity (an existing low value category) • Majority opinion also reiterates that absent some sort of “long (if heretofore unrecognized) tradition of proscription,” legislature cannot regulate violence as “low value” • Should SCT be so unwilling to find that violent depictions meeting the criteria in the statute are low value – do they contribute to public discourse? What is the majority concerned about? • As a threshold matter – are video games “expressive” in the sense that they should come within the 1st Amendment at all – do they serve 1st Amendment values?

12. Brown – the High Value Speech Issue Majority applied strict scrutiny to the content-based statute • Is there a compelling state interest supporting the statute? • Who has the better argument here – the majority opinion or Justice Breyer? • Why does the majority find the law is NOT necessary to meet the gov’t interests? • How is the law under-inclusive and overinclusive and why is that important? • Should SCT have given greater consideration to the argument that the law barely infringed on the manufacturers’ or minors’ rights? • Should we be worried about TP&M restrictions based on content even if they don’t completely suppress speech?

13. Content-Neutral regulations of speech in Hill v. Colorado – some preliminary issues Hill involved a law regulating all protestors who engaged in certain protest activities within 100 feet of medical clinics. • As a result, the law regulated protestors on publicly-owned property (such as public sidewalks or public parks across from the clinics). • Had the law merely allowed the private owners of the clinic to prohibit protestors from entering their private property, there would not have been a 1st Amendment issue. • All private property owners have the ability to keep trespassers (even protestors/speakers) off of their land • But since the law also regulated the protestors’ speech on public/government-owned land, SCT had to take that into account. • This involves the “public forum doctrine.”

14. The Public Forum Doctrine - 3 Types of Forums for Speech Purposes • Traditional Public Forum – places where speech has historically occurred • Streets, Parks & Sidewalks • CB/CN rules apply & complete exclusions from the forum are disfavored • Designated Public Forum • Officials need not open up such property for expressive purposes but once they do, must abide by the same rules as in a traditional public forum • E.g., – school opens classrooms to public for meetings after school • Non-Public Forum • Officials have the right to reserve property for its intended use. Regulations of speech in these forums are upheld as long as they are reasonable and not an effort to suppress a particular viewpoint • E.g., mailbox, dean’s office at public university, jails, courtrooms

15. Hill v. Colorado – Content-based or Content-neutral? Colorado law bars (in a 100 zone around med facility) “knowingly approaching” w/in eight (8) feet of another person, without their consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to or engaging in oral protest, education or counseling with such other person.” Majority – upheld the statute as a content-neutral regulation of speech in a traditional public forum for 3 reasons: • Law only regulates places where speech can occur; it does not regulate speech • Law was not adopted because of disagreement with a particular message • The govt’s interests in protecting access & privacy are unrelated to content of message • Who has the better argument re whether the statute is content-neutral – the majority or the dissenting opinions?

16. A Brief Overview of Vagueness & Overbreadth Overbreadth • Courts can strike down broad laws that prohibit substantial amounts of protected expression in addition to unprotected expression. • Generally used with laws attempting to regulate “low value” speech but which are poorly drafted. • Example – The law in Brandenburg, if written today, could be challenged as overly broad because it isn’t limited to punishing incitement as defined by SCT. In addition to punishing unprotected incitement, the law punishes too much protected speech. Vagueness • Criminal defendants can also challenge a law as vague – i.e., as providing insufficient notice to allow reasonable people to conform their behavior to the law. • When law affects speech SCT is especially likely to strike down a vague law – because of likely “chilling” effect and arbitrary application.