Arc of 1st Amendment Free Speech Clause Jurisprudence

Key Questions:

• Expressive conduct as Free Speech subject to strict scrutiny unless the government would have punished the conduct regardless of its expressive component.
• Strict Scrutiny of content-based regulation.
• Balancing test for content-neutral regulation.
• Which speech?
  • Political Speech
  • Commercial Speech
  • Fighting Words
  • Advocacy of imminent lawless behavior
  • Obscenity
  • Fraudulent misrepresentation
  • Defamation
• Intent?
  • Intent required: Defamation of Public Figures (civil) (Sullivan 1964); Inciting to Violence (criminal) (Brandenburg); Obscenity (criminal) (Hamling 1974); True Threats (criminal. recklessness.) (Counterman 2023)
  • Intent not required: Defamation(? Counterman at 12) (civil) (Gertz v. Robert Welch, Inc. 1974); Fighting Words (criminal) (Chaplinsky 1942); Deceptive Commercial Speech (civil?? criminal??) (Zauderer 1985);
• Which forum?
  • Traditional public (parks, sidewalks) -- hightened scrutiny
  • Limited-public (airports)
  • Non-public (gov't proprietary area. gov't offices, bases) -- no protection
  • Private
  • Time, Place, Manner Test:
    • The regulation must be content neutral.
      
    • It must be narrowly tailored to serve a significant governmental interest.
      
    • It must leave open ample alternative channels for communicating the speaker’s message.
      
• Definitions
  • Conduct as Speech
  • Defamation (Public Figures)
  • Defamation (Private Individuals): false statements of fact harming another’s reputation. Gertz v. Robert Welch, Inc., 418 U. S. 323, 340, 342 (1974)
  • Deceptive Commercial Speech
  • Fighting Words
  • Incitement: statements “directed [at] producing imminent lawless action,” and likely to do so. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam).
  • Obscenity: valueless material “appeal[ing] to the prurient interest” and describing “sexual conduct” in “a patently offensive way.” Miller v. California, 413 U. S. 15, 24 (1973).
  • ... True Threats: “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U. S. 343, 359 (2003)

  Conduct as Speech:

  Expressive Conduct includes: website design, custom wedding cakes, ...
  Standard or test not defined.

  303 Creative v. Elenis (2023) Making a Wedding Website

  A company or individual soliciting business from the public, in which the product is "expressive conduct" and "conveys a message" may refuse business based upon a Free Speech claim.

  Convservative View: a vendor cannot be compelled by the government: (1) to create customized and expressive products (whether goods or services) that constitute the vendor's own expression (op. at 9, 16); (2) where the vendor's objection is to the message contained in the product itself, not to the identity or status of the customer (op. at 18 n. 3, 20).

  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (2018)

  Expressive Conduct subject to O'Brien standard if the government would have punished the conduct regardless of its expressive component (details in case brief). Otherwise strict scrutiny applies per Thomas concurrance Part III page 11. All refusal to express oneself via conduct (won't bake cake, won't sell website, etc.) subject to strict scrutiny and it appears from this case that Freedom of Speech prevails over Equal Protection. Case decided based upon Free Exercise clause in Kennedy's majority opinion. Thomas would have found for the plaintiff on Free Speech grounds as well.

  United States v. O'Brien (1968) Burning a Draft Card

  O'Brien Standard:
  ... we think it clear that a government regulation is sufficiently justified

  • if it is within the constitutional power of the Government; [raise and support armies Lichter v. United States, 334 U. S. 742, 334 U. S. 755-758 (1948)]
  • if it furthers an important or substantial governmental interest; [The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate and substantial interest....]
  • if the governmental interest is unrelated to the suppression of free expression, and [... both the governmental interest and the operation of the 1965 Amendment are limited to the noncommunicative aspect of O'Brien's conduct.]
  • if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

  Stromberg v. California (1931) Conduct as Political Speech: Waving a Red Flag

  The First Amendment extends to symbolic speech, or expressive conduct, so a state cannot prevent people from flying red flags as a political statement.
  A statute which, upon its face and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity [for free political discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.

  Incitement:

  Time, Place, and Manner Cases:

  Hill v. Colorado (2000)

  Valid time, place, and manner regulations under the First Amendment must be designed to serve a significant and legitimate government purpose, contain content-neutral restrictions, and be narrowly tailored so that ample alternative avenues of communication remain available.

  United States v. Kokinda (1990)

  Sidewalk in front of post office building separated from the road by parking spaces is non-public gov'tal forum.
  

  Ward v. Rock Against Racism (1989)

  Source of Time, Place, Manner Test:

  • The regulation must be content neutral.
    
  • It must be narrowly tailored to serve a significant governmental interest.
    
  • It must leave open ample alternative channels for communicating the speaker’s message.
    

  United States v. Grace (1983)

  Heffron v. Krisha Consciousness (1981)

  The State's interest in maintaining the orderly movement of the crowd at the fair is sufficient to satisfy the requirement that a time, place, or manner restriction
  "Inclusion of peripatetic solicitation (sankirtan) as part of a church ritual does not entitle church members to solicitation rights in a public forum superior to those of members of other religious groups that raise money but do not purport to ritualize the process."