Lecture Notes Chapter #3 PDF

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Notes taken over the course of a few weeks during lectures....

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How the Supreme Court REVIEWS laws affecting First Amendment Rights  Rule of law: the legal standards that guide the proper and consistent creation and application of law. o This constrains both the actions of people and gov’t o Bottom line? → the rule of law requires the law to be stable  Review legal terms: o State decris → legal principle that tells courts to stand by what courts have decided previously o Vagueness/overbreadth → an overbroad or b=vague law that restricts freedom of expression can be challenged “on its face” b/c its existence may curtail freedom of expression o Vague → line between protected and unprotected speech will inhibit speech = unconstitutionally vague  One written so unclearly that people cannot understand o Overbroad → takes in too much speech  Does the law involve speech at all?  Laws of general applicability → presumed constitutional o Laws such as tax and equal employment laws that apply to everyone  Judicial Review: it’s the level of doubt the Supreme Court uses to review the law o Rational → applies minimum scrutiny o Intermediate → a standard applied by the courts to review laws that implicate but do not directly regulate core constitutional values; also called heightened review o Strict → aimed at speech content  Content speech or content neutral?  Content Based Regulation: target the ideas expressed o Regulate what is being said o They single out certain messages or types of speech for a particular treatment o A law that targets the “desecration” of the U.S. flag = content based o Texas v. Johnson o What about kneeling during a football game? o Reed vs. Town of Gilbert o The supreme court generally presumes content-based regulation are unconstitutional → censorship  Strict scrutiny (for the test, the law must be…) o Be necessary o Employs the least restrictive means  Only if they are extremely narrowly tailored to their goals and  Affect the smallest possible amount of protected speech  There is no other reasonable method to achieve its goals  To advance a compelling gov’t interest  Of the highest order that relates to core constitutional concerns OR  The most significant functions of gov’t  Includes national security, the electoral process, public health and safety

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Content-Neutral Laws → laws that impose speech restriction to advance legitimate gov’t interests without targeting particular viewpoints or content generally are CONSTITUTIONAL o Time/place/manner laws → a first amendment concept that law regulating the conditions United States v. O’Brien o O’Brien Test  Unrelated to suppression of speech → if the court finds a law is not directed at the content of speech and does not target ideas disfavored by gov’t  Important gov’t interest → when it is weighty or significant, more than merely convenient or reasonable, laws intended to serve gov’t goals unrelated to content  Narrowly tailoring → requires law to fit its purpose  Law fits when it advances the gov’t interest without imposing an unnecessary burden on speech  Must be clear and give officials unlimited discretion Ward v. Rock Against Racism → Content Neutral o Naumburg bandshell o Sheep Meadow o Was NYC's sound-amplification guideline factually valid under the First Amendment?  The city cannot be required to consider whether or not there are less intrusive means of doing so o CRT: the answer to the CRT question is in the dissent Reed v. Town of Gilbert (Prof. B’s favorite case) o At first glance → general applicability law o BUT → there were 23 exempted signs o Content neutral does not apply here → gov’t regulation of speech is content based if a law applies to a particular speech b/c of the topic discussed or the idea or message expressed o Draws distinctions based on the message a speaker conveys o Banning the use of sound trucks for political speech and only political speech → content-based regulation WHEN DOING ANALYSIS: o Content based → scrutiny test o Intermediate scrutiny after Reed →  The law does not distinguish between categories or types of speech and  The law’s purpose is not related to the viewpoint or content of the speech o Question #2 on the exam → facts, facts, reason, compelling  Before intermediate or strict → ask the questions:  Does the law distinguish between categories or types?  What is the law’s purpose? Is it related to the viewpoint or content of the speech?

 THEN → it tells you if it is intermediate or strict  You still have to make an analysis on why it is strict (3 prongs) An ‘A’ exam will take facts + law + analysis + conclusion = I would argue it is ___ b/c _____ and the court would use _______. But if the court decides that it is ______ they would do ______ b/c ______....