Content based/ Content neutral
What are some of the requirements for time, place, manner restrictions?
Reasonable
Leave open ample alternative channels of communication
When is conduct protected under the 1A?
If it is expressive
Why has the Court invalidated many law that ban mediums of speech?
Long standing history, inexpensive, huge 1A impairment, other ways to accomplish govt interest.
Why did the Court reject the 1A claim in Hazelwood?
The Court held educators do not offend the 1A by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns (SCHOOL SPEECH).
Why is the overbreadth doctrine heavily criticized?
Windfall -- can be facially challenged by someone whose speech was not protected.
Other reasons include too drastic, federalism concerns, and powerless to prosecute.
What is the secondary effects doctrine?
A content-based law that targets the secondary effects is subject to intermediate scrutiny, rather than strict scrutiny.
In determining whether the govt interest was related to the suppression of free expression, what can the court not consider?
Legislative motives/intent
What is the test from Bethel?
Students’ free speech rights must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior
What was the test applied in Madsen v. Women's Health Center?
When evaluating a content-neutral injunction, we must ask whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant govt interest (intermediate scrutiny +)
What is the presumption for prior restraints?
Prior restraint comes with a heavy presumption against its constitutional validity. Govt carries a heavy burden of showing justification for the enforcement of such restraint (NYT v. US).
Why was the law in Reed v. Town of Gilbert content based?
The exemptions for certain subject matters within the law made it content based
How can you determine if conduct is expressive and therefore protected under the 1A?
An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it. Spence v. Washington
What is the rule that came out of Tinker?
What is the definition of public concern for public employee speech cases?
Public concern is “fairly considered as relating to any matter of public, social, or other concern to the community” (Connick v. Meyers).
What is the test for vagueness?
A law is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning or differ as to its application.
Why did the Court not apply the secondary effects doctrine in Boos v. Barry?
It actually regulated the primary effect of political speech
Why did the court apply an intermediate scrutiny test in O'Brien for expressive conduct?
Because the law was not view pt or content discriminatory
What are the four types of forums? And what test is applied to each of them?
traditional - Ward
Limited - must be view pt neutral and reasonable. it can be content based
Designated - Ward
Non public forum - govt can completely prohibit public speech and use it for its intended purpose
How do you approach a problem related to public employee speech?
1. Matter of public concern
2. Balance speech value against govt interest in maintaining workplace environment.
Note -- cannot be speaking pursuant to official duties
Exception -- speech made under subpoena or grand jury testimony
In general, what are the policy reasons for these procedural doctrines?
chilling effect, selective/discretionary enforcement, due process/procedural concerns, incentive to draft laws carefully
How does the court define a content based law?
1. A law on its face applies to particular speech because of the topic discussed on the idea or message expressed.
2. A facially neutral law that cannot be justified without reference to the speech’s content or was adopted because of the government’s disagreement with the message.
Reed v. Town of Gilbert
What is the O'Brien test?
A law regulating expressive conduct must:
1. Be within the constitutional power of the govt;
2. Further an important or substantial govt interest;
3. The govt interest is unrelated to the suppression of free expression (content-neutral); and
4 The incidental restriction on alleged 1A freedoms is no greater than is essential to the furtherance of that interest.
What is the Clark/Ward test?
Content neutral regulation of speech in public forum does NOT violate 1A if:
1. Narrowly tailored
2. Serves significant govt interest
3. Leaves open ample alternative channels of communication
How do you determine if it is govt v. private speech?
1. History of the expression at issue
2. The public’s likely perception as to who (govt or private person) is speaking
3. The extent to which the govt has actively shaped or controlled the expression (Shurtleff v. City of Boston).
What are the limitations on the overbreadth doctrine?