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FRIST A: OVERVIEW OF CASES FOR FREEDOM OF SPEECH CHART

1. This flowchart only applies to situations where Gov. is regulating speech. If Gov. is speaking or is subsidizing speech, different rules
apply. The term "speech" is used here to include both speech & expressive conduct as defined0 in Texas v. Johnson, 491 U.S. 397 (1989).
In Johnson, the Court said that conduct is expressive and thus may receive First Amendment protection if:
(i) the actor intends to convey a particularized message; and
(ii) there is a great likelihood that an observer will understand the particular message intended to be conveyed.
If the act is neither speech nor expressive conduct, then the First Amendment Speech Clause is not implicated.

2. If government is speaking, as a general rule Gov. is allowed to formulate and deliver whatever message it chooses. Rust v.
Sullivan, 500 U.S. 173 (1991).
If government is paying a person (as an employee, contractor, or grantee) to deliver its message, the general rule is that
person may be compelled to deliver the government' s message e.g., Garcetti v. Ceballos, 126 S.Ct. 1951 (2006); Rust.
The person' s freedom of expression is limited during the time he actually works for Gov, but this limitation is a result of
his voluntary decision to work for the government. Id.
Generally speaking, when Gov. selectively funds one program to the exclusion of another, government does not
discriminate on the basis of viewpoint. Id.
Gov. does not infringe the exercise of a right merely by its failure to fund the exercise of that right. Regan v. Taxation
With Representation of Washington, 461 U.S. 540 (1983).

3. If government is subsidizing speech, the subsidy system will be upheld unless the challenger can demonstrate that the system is being
used to suppress disfavored viewpoints. National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).
Generally speaking, when Gov. selectively funds one program to the exclusion of another, government does not discriminate on the
basis of viewpoint. Rust. The Court also speaks of speech subsidies in spending terms, observing that Congress may do things via
spending that it could not do by direct regulation, so long as other constitutionally protected rights are not infringed. Id.

4. Unprotected speech includes


___a. Fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (words that inflict injury or are an invitation to fisticuffs);
___b. Incitement of unlawful activity, Brandenburg v. Ohio, 395 U.S. 444 (1969) (purpose to incite imminent
unlawful conduct and likely to have that effect); speech to a hostile audience, Feiner v. New York, 340 U.S. 315
(1951) (clear and present danger of riot, disorder, or immediate threat to public safety);
___c. Obscenity, Miller v. California, 413 U.S. 15 (1973) (prurient interest, patently offensive, no SLAPS
value);
___d. Child pornography, New York v. Ferber, 458 U.S. 747 (1982) (visual images of actual children in
specified sexual acts);
___e. True threats, Virginia v. Black, 538 U.S. 343 (2003) (expression of serious intent to cause harm reasonably perceived as such).

5. Note, however, that content-based regulations of unprotected speech - other than regulations limiting the content elements that
make the speech unprotected - will be subjected to SS. R.A. V. v. City of St. Paul, 505 U.S. 377 (1992).

6. Recall that in Johnson, supra, the Court developed an 0 'Brien - time/place/manner (TPM) analytical model that can be applied
to (but is not limited to) expressive conduct.
If the conduct = expressive (see n. 1, supra) then begin with an 0 'Brien analysis.
Specifically, identify the Gov. s interest and ask if that interest is related to the suppression of expression.
If the answer is NO, meaning that the Gov.' s interest is unrelated to suppressing expression, then complete the 0 'Brien
analysis.
If the Gov.s interest is related to suppressing expression, then look to see whether the regulation is a TPM regulation. See n.
7,.

7. If the Gov.' s interest is related to suppressing expression ask whether that interest is related to content of the speech or expression.
If the answer is NO, meaning that the government' s interest is not related to the content, then complete TPM analysis.
If the Gov.s interest is related to the content of the speech or expression, then see whether the speech or expression is of a kind or is
happening in a place where content regulation may be allowed without the government having to satisfy SS.

8. Narrow tailoring here does not mean least restrictive means. A TPM regulation is narrowly tailored if the government' s interest
"would be achieved less effectively absent the regulation." Ward v. Rock Against Racism, 491 U.S. 781 (1989).
The same standard applies to O 'Brien regulations. Rumsfeld v. FAIR, 547 U.S. 47 (2006).

9. The Tinker - Bethel - Hazelwood trilogy applies to student speech. Speech by school teachers and administrators will be
treated as speech by a government employee. e.g., Gafcetti, supra; Connick v. Myers, 461 U.S. 138 (1983).

10. Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969).
Student speech or expression is protected so long as the speech or expression
__i. does not materially disrupt classwork;
FRIST A: OVERVIEW OF CASES FOR FREEDOM OF SPEECH CHART

__ii. involve substantial disorder; or


__iii. harm the rights of others. If the speech or expression is political in nature, it is more likely
to be protected., e.g., Morse v. Frederick, 127 S.Ct. 2618 (2007) (Alita, J., concurring).

11.Bethel School Dist. v. Fraser, 478 U.S. 675 (1986). Student speech that is lewd, profane, indecent, or sexually suggestive
is inconsistent with a school' s educational mission and need not be tolerated.

12. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988). A high school student newspaper would today be categorized as a
limited designated forum. The Court drew a distinction between speech the school must tolerate, as in Tinker, and speech the
school may decline to endorse.
School officials are free to regulate student speech or expression in school sponsored expressive activities as long as the
regulation is reasonably related to legitimate pedagogical concerns .

13. , e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (free exercise challenge) judicial review of military regulations challenged
on First Amendment grounds "far more deferential" than review of regulations in civilian society);
O 'Lone v. Shabazz, 482 U.S. 342 (1987) (free exercise challenge) (prison regulations gen under "reasonableness" standard).

14. Commercial speech is speech or expression that relates "solely to the economic interests of the speaker and its audience."
Central Hudson Gas & Elect. Corp. v. Public Serv. Comm 'n., 447 U.S. 557 (1980).
In order for commercial speech to be entitled to any First Amendment protection, the speech must relate to a lawful subject matter
and must not be fraudulent or deceptive. Id. The substantial overbreadth doctrine does not apply to commercial speech. Bates v.
State Bar of Arizona, 433 U.S. 350 (1977). The Central Hudson four-part test controls.

15. In Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), the Court explained that a regulation directly advances the
government' s interest if the government shows, by evidence and not by speculation, that the harm the government seeks to avoid is real
and that the regulation will alleviate that harm to a material degree.

16. The inquiry here is whether the regulation is more extensive than necessary to achieve the government's interest.
Although the standard is sometimes described as "narrowly tailored," Lorillard, supra, as with other speech regulations
"narrowly tailored" here does not mean least restrictive means. Lorillard, supra, said that this requirement is satisfied if there is
a "reasonable fit" between the government' s interest and the means chosen to achieve that interest.

17. "Traditional" broadcast media refers to traditionally free broadcasts ( e.g., "rabbit ears" television and free radio programming).
As to "newer" media such as cable television and the Internet, the Court appears to be gravitating toward the standard content-based
versus content-neutral analytical model. e.g., Playboy Entertainment Group, Inc. v. United States, 529 U.S. 803 (2000) (regulation
of adult programming on cable networks is content based; government bears burden of satisfying SS standard);
Ashcroft v. ACLU, 542 U.S. 656 (2004) (regulation of adult content on Internet fails least restrictive means testing).

18. F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978) is the leading authority. The Court permitted the FCC to take action against
a licensee, pursuant to the FCC' s authority to regulate indecent content, when the licensee broadcast profane speech in the afternoon.
The FCC treated the broadcast as a "nuisance," meaning that the FCC considered the facts & circumstances surrounding the broadcast.
A broadcast that might subject a licensee to regulatory action under some circumstances (e.g., during the daytime or prime time hours)
might not result in regulatory action under other circumstances (e.g., during the overnight hours).
This analysis is conceptually similar to a sort of time, place, or manner regulation.
However, when analyzing this kind of fact pattern, do not refer to the regulation as a time, place, or manner regulation.
A true TPM regulation must be content neutral; FCC regulation of indecent content is content based.

19. At this point, we are dealing with a content-based regulation that does not fit w/in any other exception allowing
government to regulate content w/o meeting strict scrutiny. There remains one more possibility: that the government is
regulating speech in a limited designated or nonpublic forum. In such a forum, we split content into two subsets - subject
and viewpoint. Government can control speakers and subjects here.
To pass constitutional muster, regulations need only be reasonable and viewpoint neutral. ISKON v. Lee, 505 U.S. 672 (1992).
A regulation is reasonable when it is consistent with the use for which the property has been dedicated .Id (O' Connor, J.,
concurring); Perry Education Ass 'n. v. Perry Local Educators ' Ass 'n., 460 U.S. 37 (1983).

20. If the property is a public or unlimited designated forum, then content-based speech regulations must satisfy strict
scrutiny. The Gov. must demonstrate a compelling interest and the speech regulation must be narrowly tailored - meaning least
restrictive means. ISKON, supra .
Content-neutral speech regulations are permitted so long as they satisfy the requirements of 0 'Brien or TPM.