Predicate Issues
A city ordinance makes it unlawful to engage in “annoying, inappropriate, or disruptive behavior” in any public place. A defendant challenges the law arguing it violates the First Amendment.
What is a facial vagueness challenge, because the ordinance fails to provide fair notice of what conduct is prohibited and grants excessive enforcement discretion, creating a chilling effect on protected speech?
A newspaper falsely reports that a well-known local real estate developer “blackmailed city officials to secure zoning approval.” The developer is not a public official, but regularly appears at city council meetings, donates to local campaigns, and is frequently quoted in the press on development issues. The developer sues for defamation, seeking presumed and punitive damages.
The developer is a private plaintiff, not a public figure. Because the statement concerns a matter of public concern, the developer must prove actual malice to recover presumed or punitive damages, while actual/compensatory damages require only a showing of negligence.
A city bans all advertisements for a lawful energy drink within 500 feet of any athletic facility, citing studies that excessive consumption may increase the risk of heat-related illness during sports activities. The ban applies only to advertising, not to the sale or use of the product, and does not restrict ads outside the 500-foot zone. The manufacturer challenges the ordinance under the First Amendment.
The regulation is evaluated under Central Hudson. Although the speech concerns a (1) lawful, non-misleading product and the (2) city has a substantial interest in protecting public health, the ordinance likely fails prongs (3) and (4) because banning advertising—while leaving sale and consumption untouched—is a poor fit. The restriction does not directly advance the interest in a sufficiently material way and is more extensive than necessary, as the problem identified relates to use, not speech.
A state bans all billboard advertisements for licensed gambling casinos. The casinos are legal, and the advertisements are truthful and non-misleading. The state claims the ban is necessary to reduce gambling addiction and related social harms. The ban applies to all billboards statewide, regardless of location or audience.
Is the expression protected? Yes. The advertisements concern a lawful activity and are truthful and non-misleading, so they receive First Amendment protection.
Is the asserted government interest substantial?
Yes. Reducing gambling addiction and related social harms is a substantial government interest.
Does the regulation directly advance the government interest? Weakly, at best. While limiting exposure to advertising may marginally reduce gambling, a total billboard ban does not directly target problem gambling behavior and leaves other forms of promotion untouched.
Are there numerous and obvious alternatives that would serve the interest without impacting speech? Yes. The state could regulate gambling operations, impose warning disclosures, restrict access, or fund treatment programs—less speech-restrictive alternatives that directly address the harm.
Is the restriction no more extensive than necessary? No. A statewide ban on all billboard advertising is more extensive than necessary to serve the asserted interest.
A city ordinance allows demonstrations in public parks, but prohibits demonstrations that “criticize local government policies” between 9 a.m. and 5 p.m. The city claims the law is justified by concerns about congestion during business hours.
The ordinance fails at the first Frisby prong because it is not truly content-neutral. It singles out speech based on subject matter (criticism of government). Content-based restrictions in a traditional public forum trigger strict scrutiny, not Frisby, and the ordinance is unconstitutional.
A state statute makes it a crime to “encourage, promote, or express approval of any unlawful activity,” The law is justified as targeting criminal advocacy. A defendant who merely discussed civil disobedience challenges the statute before trial.
What is a facial overbreadth challenge, because the statute prohibits a substantial amount of protected speech (abstract advocacy and discussion of illegality) along with unprotected speech, thereby chilling First Amendment expression?
At a public rally, a speaker tells a crowd: “This government is corrupt, and one day we’re going to have to rise up and take it back by force.” The speaker is prosecuted under a statute banning speech that creates a “clear and present danger” of lawless action.
The prosecution violates the First Amendment because the speech does not satisfy Brandenburg. Although the statement advocates violence in the abstract, it is not intended, not likely, and not directed to inciting imminent lawless action. Under modern doctrine, abstract advocacy of force does not constitute a punishable “clear and present danger.”
Remember (1) Intended (2) Likely (3) Imminent
A public university opens a bulletin board in the student center for student organizations to post flyers about political issues. The university permits flyers supporting military intervention overseas but removes flyers opposing military intervention, explaining that anti-war messages are “divisive and harmful to campus morale.”
The university has engaged in viewpoint discrimination. The forum is at least a limited public forum, and while the university may impose reasonable, viewpoint-neutral restrictions, it may not allow speech on a topic (military intervention) while suppressing speech expressing the opposing viewpoint. Viewpoint discrimination triggers strict scrutiny, which the policy cannot satisfy.
A beverage company runs a television advertisement that begins by promoting its bottled water as “the cleanest and healthiest choice for your family.” The ad then transitions into a critique of the government’s failure to enforce clean-water regulations and urges viewers to “vote out politicians who allow pollution to poison our rivers.” The state prohibits the advertisement, arguing that it is commercial speech and misleading.
The advertisement contains both commercial and non-commercial speech. Although the ad promotes a product, the political message criticizing government policy is not incidental to the sales pitch. Because the restriction targets the non-commercial, political portion of the expression, the regulation is not analyzed under Central Hudson and instead triggers strict scrutiny. The ban is unconstitutional because political speech lies at the core of the First Amendment.
A town bans all leafleting on public sidewalks between 8 a.m. and 6 p.m., citing a desire to “maintain a pleasant atmosphere for pedestrians.” Speakers may still talk to passersby verbally.
The regulation likely fails Frisby prong two. A generalized desire to maintain a “pleasant atmosphere” is not a sufficiently significant government interest to justify restricting core expressive activity like leafleting in a traditional public forum.
A state court issues a TRO prohibiting a newspaper from publishing the name of a local official allegedly under criminal investigation, citing concerns about reputation and ongoing proceedings. The order is issued before any publication occurs. The newspaper challenges the order under the First Amendment.
What is an unconstitutional prior restraint, because the government intervenes before speech occurs, and such restraints carry a strong presumption of unconstitutionality that the state cannot overcome by generalized concerns about reputation or embarrassment?
After a heated online dispute, a speaker posts on a public forum directed at a named individual: “You deserve what’s coming. I know where you live." The speaker later claims it was “just venting” and had no intent to actually harm the individual. The target testifies that they feared serious bodily harm. The state prosecutes the speaker for making a criminal threat.
Statements meant to place a reasonable person in fear of serious bodily harm or death.
Requirements:
A city enacts two ordinances:
Ordinance A prohibits homeowners from displaying signs on their own lawns that “criticize government officials or policies.”
Ordinance B prohibits canvassers from entering private residential property without the homeowner’s consent for the purpose of distributing political pamphlets.
A homeowner challenges Ordinance A after being fined for placing a sign criticizing the mayor. Separately, a political advocacy group challenges Ordinance B after being cited for door-to-door canvassing.
Ordinance A regulates the homeowner’s own use of their property for speech purposes and is content-based, because it targets criticism of government. It must satisfy strict scrutiny (Chapter 13). It is unconstitutional because suppressing political criticism is not a compelling interest and the law is not narrowly tailored.
Ordinance B regulates a third party’s use of private property for speech. The court applies a balancing test, weighing the canvassers’ First Amendment interests against the homeowner’s privacy and property interests. The ordinance is constitutional because protecting residential privacy is a substantial interest that may outweigh the speakers’ interest in accessing unwilling listeners.
A public high school student wears a hoodie to school that reads, “This school is a joke.” The message does not cause disruption, protests, or interference with classes. The school disciplines the student under a policy prohibiting “disrespectful speech toward school staff.”
Because the speech occurs on school grounds, the court applies rational basis review. The school has a legitimate interest in maintaining order and respect in the educational environment, and disciplining disrespectful on-campus speech is rationally related to that interest. The discipline is constitutional.
A city prohibits all demonstrations anywhere within a five-mile radius of City Hall, 24 hours a day, citing security concerns related to protecting government officials.
Although protecting officials is a significant government interest, the ordinance fails Frisby prong three because it is not narrowly tailored. A sweeping five-mile, 24-hour ban burdens substantially more speech than necessary to address security concerns.
A city ordinance requires a permit before holding any public demonstration. The ordinance authorizes the police chief to grant or deny permits based on whether the demonstration is “appropriate, in the public interest, and consistent with community values.” A group is denied a permit and challenges the ordinance under the First Amendment.
What is an unconstitutional prior restraint, because the permit scheme lacks specific, concrete, content-neutral standards, gives unbridled discretion to a government official, and therefore fails the First Amendment requirements for permit schemes?
Remember (1) concrete criteria (2) content-neutral.
During a face-to-face argument on a crowded sidewalk, a speaker steps directly in front of another individual, points at them, and says: “You’re a filthy, worthless piece of trash, and everyone knows it.” The target becomes visibly angry but does not immediately strike the speaker. Police arrest the speaker under a statute banning “offensive and insulting language in public.”
The statement may qualify as fighting words because it consists of personally abusive epithets, directed face-to-face at a specific individual, and is of the type likely to provoke an immediate violent reaction. However, the statute itself is likely unconstitutional if it broadly bans “offensive and insulting language” without being limited to true fighting words.
A city owns a large downtown plaza that has historically been used as a public gathering space for speeches, protests, and demonstrations. The city has also formally opened the plaza for public expressive activity by permit.
The city adopts two regulations:
Regulation A prohibits demonstrations in the plaza that “criticize foreign governments.”
Regulation B limits all demonstrations in the plaza to between 10:00 a.m. and 6:00 p.m. and caps attendance at 500 people, citing pedestrian congestion and public safety concerns.
A group challenges both regulations under the First Amendment.
The plaza is a traditional public forum (and, alternatively, a designated public forum due to formal opening).
Regulation A is content-based because it prohibits speech based on its subject matter (criticism of foreign governments). Content-based restrictions in a traditional or designated public forum must satisfy strict scrutiny (Chapter 13). The regulation is unconstitutional because suppressing criticism of foreign governments is not a compelling interest and the restriction is not narrowly tailored.
Regulation B is content-neutral and is evaluated under the Frisby time, place, and manner test. The city has a significant governmental interest in pedestrian flow and public safety, the regulation is narrowly tailored, and it leaves open ample and adequate alternative channels for communication. The regulation is constitutional.
A student posts on a private social media account from home over the weekend:
“School administrators are incompetent and care more about rules than students.”
The post does not mention the school by name, does not threaten anyone, and causes no disruption or safety concerns at school. The school disciplines the student after learning about the post.
Because the speech occurs off campus, outside a school event, and does not cause disruption or raise safety concerns, it is protected by the First Amendment. The school’s discipline violates the student’s free speech rights.
A city bans all amplified speech in its only downtown public square, citing noise complaints from nearby residents. The city provides no alternative locations where large crowds can gather and be heard.
The ordinance fails Frisby prong four because it does not leave open ample and adequate alternative channels for communication. Eliminating the only effective forum for reaching the intended audience is constitutionally insufficient.
The First Amendment is incorporated against the states through the (blank) Amendment's (blank) Clause.
14th amendment/due process clause
A state prosecutes a bookstore owner for selling a graphic novel containing explicit sexual scenes. The work also includes a sustained narrative exploring power dynamics, identity, and trauma, and has received favorable reviews from literary critics. The state argues that several pages depict sexual conduct in a highly explicit and offensive manner and appeals to prurient interest under local community standards.
The material is not obscene because, when evaluated as a whole, it does not lack serious literary, artistic, political, or scientific value. Even if portions of the work appeal to prurient interest and are patently offensive under community standards, failure to satisfy any one prong of the Miller test means the speech remains protected.
Remember (1) Prurient interest taken as a whole using community standards (2) patently offensive under state law (3) lacks SLAP value
A public university allows student organizations to use classroom buildings after hours for meetings related to “professional development and leadership training.” Political organizations are permitted to meet, but only to discuss career networking and resume building. The university denies a request by a student labor group to hold a meeting advocating for unionization of campus workers, explaining that the topic falls outside the permitted uses.
Separately, a city transit authority prohibits all expressive activity inside subway cars, including leafleting, speeches, and demonstrations.
Both the student group and a protester challenge the restrictions under the First Amendment.
The classroom buildings are a limited public forum because the university has opened the property for expressive activity but only for certain subjects and purposes. In a limited public forum, both content-based and content-neutral restrictions need only be reasonable and viewpoint neutral. The restriction is reasonable because it preserves the forum’s intended purpose. However, if the university permits discussion of professional development but excludes labor advocacy because of disagreement with the message, the restriction would be unconstitutional viewpoint discrimination.
Subway cars are a nonpublic forum because they are not traditionally or intentionally opened for public expression. Restrictions in a nonpublic forum need only be reasonable and viewpoint neutral. A blanket ban on expressive activity inside subway cars is reasonable given safety, congestion, and operational concerns and is constitutional so long as it applies evenhandedly.
After school hours, a student attends a school-sponsored football game and displays a sign criticizing the school administration. The sign does not incite violence but angers staff members. The school disciplines the student, arguing the speech occurred “outside class time.”
Although the speech occurs outside class hours, it takes place during a school-sponsored event. Because the speech is connected to a school event, the court applies rational basis review. The school’s interest in managing conduct at school events is legitimate, and the restriction is constitutional if rationally related to that interest.
A city limits demonstrations on public sidewalks outside hospitals to daylight hours and requires demonstrators to remain at least 25 feet from entrances. The regulation applies to all demonstrations regardless of viewpoint and is justified by patient safety and access concerns.
The regulation satisfies all four Frisby prongs. It is content-neutral, serves a significant government interest (patient safety and access), is narrowly tailored, and leaves open ample alternative channels for communication. The law is constitutional.