MBE Constitutional Law - Speech

Freedom of expression (speech, religion, press, assembly, & association)

Expressive conduct meant to convey a particular message (e.g. wearing black arm bands in protest)

Regulation furthers important gov. interest;

Interest is unrelated to suppression of the message; and

Impact on speech is no greater than necessary to achieve interest

Unconstitutional

Constitutional b/c gov’t interest in harmful effects

Constitutional b/c gov’t interest in littering

Constitutional if meant to threaten

Restriction based on the speech’s subject matter; i.e. prohibiting speech on an entire category of subject matter. Can be either content-based on its face or as applied.

⭐️ Subject to strict scrutiny ⭐️

Obscenity;

Incitement;

Fighting words;

Defamation; and

Commercial speech

⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny

Applies neutrally to all content regardless of viewpoint or subject matter.

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny

Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.

Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums

Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums

Restriction is:

Content-neutral;

Leaves open ample, alternative channels of communication; and

Narrowly tailored to serve significant government interest (not compelling gov. interest)

No

When forum is open for speech and:

Regulates time, place, or manner (i.e. is content-neutral);

Is narrowly tailored to serve significant government interest; and

Leaves open ample, alternative channels of communication

(same as test for traditional public forum)

Public property that is not open to speech (e.g. schools, jails, airports)

Viewpoint neutral (**does not need to be content neutral); and

Reasonably related to a legitimate government purpose

One that restricts entire categories of speech, but not viewpoints within a category

Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed

Blocks speech before it is expressed. Subject to strict scrutiny.

⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances

More info: Prior Restraint

Only allowed in extremely rare circumstances such as:

During wartime or national security crisis to protect troops/citizens; or

To prevent incitement of violence

Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).

Renders regulation void.

Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits

Yes, as long as the regulation is rationally related to a legitimate penalogical objective and an alternate way to express legitimate speech is available

⚠️ Note: This includes pretrial detainees, parolees, and those on probation

No, same rights public at large

Yes, as long as story is matter of public concern (i.e. newsworthy)

Very rarely constitutional, unless they are the least restrictive means necessary to ensure D has a fair trial (usually alternatives such as better voir dire, venue change, or postponement are available)

Criminal trials: Yes, but can be overruled upon showing of overriding interest

Civil trials: Unclear

Can only fine stations for airing "patently offensive and excretory speech"

Strict scrutiny

Intermediate Scrutiny

(e.g. "must carry" provisions)

Appeals to "prurient interests;” (community standard)

Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and

Lacks serious artistic, literary, political, or scientific value as determined by national standards

⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.

Yes, if zoning is to prevent adverse "secondary effects" caused by the business, such as increased neighborhood crime ("secondary effects doctrine")

Yes unless:

Broadcast over public television; or

In public schools

Regulation must be narrowly tailored and only aimed at:

Speech that promotes or directs imminent illegal action; and

Creates a "clear and present danger" of such action

Substantially likely to provoke an immediate violent reaction (e.g. direct personal insult)

Limitations will almost always fail for being either overbroad, vague, or viewpoint-based and thus failing strict scrutiny

⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad

Speech whose primary goal is commerce (e.g. commercial or advertisement for a product or service)

Must satisfy Central Hudson Test:

Speech is not false, misleading, or illegal;

Regulation serves substantial government interest;

Regulation directly advances interest; and

Regulation is not more extensive than necessary to serve that interest

More info: Central Hudson Test

Speech that is misleading, false, or unlawful and can be regulated freely by the government

Speech that is misleading, false, or unlawful and can be regulated freely by the government