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The free speech clause restricts gov't regulation of private speech. It does not require the gov't to aid private speech nor restrict the go't from expressing its views.
A city's placement of a permanent monument in a public park is gov't speech and thus is not subject to free speech clause scrutiny. As a corollary, the gov't cannot be forced to display a permanent monument with a message with which the gov't disagrees.
When the gov't chooses to fund private messages, it generally must do so on a viewpoint neutral basis (refusal to fund xtian magazine while supporting other types of student publication violates the 1st amendment). Art is an exception: choosing among the artists it will fund inevitably must be based on the content of the art.
CONTENT vs. CONDUCT
Content regulation is less likely to be upheld than a regulation of the conduct incidental to speech.
It is presumptively unconstitutional for the gov't to place burdens on speech because of its content (unless it fits into an unprotected category). To justify such content-based regulation, the gov't must show that the reg (or tax) is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.
- While content-based regulation is subject to strict scrutiny, content-neutral speech regs generally are subject to intermediate scrutiny and will be upheld if the gov't can show that:
- (1) they advance an important interest unrelated to the suppression of speech; and
- (2) they do not burden substantially more speech than necessary to further those interests.
The USSC has allowed gov'ts to adopt content-neutral time, place, and manner regs. Regulations involving public forums must be narrowly tailored to meet an important gov't interest. Regs involving non-public forums must have a reasonable relationship to a legitimate regulatory purpose.
REASONABLENESS OF REGULATION
Since the purpose of the freedoms of speech and assembly is to encoursage the free flow of ideas, a reg will not be upheld if it is overbroad. If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech, judged in relation to the regulation's plainly legitimate sweep, the reg is facially invalid and cannot be enforced against anyone unless a court has limited construction so as to remove the threat to constitutionally protected expression.
- If a criminal law or reg fails to give persons reasonable notice of what is prohibited, it may violate the DP clause. This principle is applied strictly when 1st amendment activity is involved in order to avoid the chilling effect a vague law might have on speech.
- --> The person challenging the reg has the burden of showing the substantial overbreadth.
A regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. This issue usually arises under licensing schemes established to regulate the time, place, manner of speech. To be valid, such licensing schemes must be related to an important gov't interest, contain procedural safeguards and not grant officials unbridled discretion.
If a statute gives licensing officials unbridled discretion, it is void on its face, and speakers need not even apply for a permit and they may not be punished for violating the licensing statute.
If the licensing statute is valid on its face because it contains adequate standards, a speaker may not ignore the statute, but must seek a permit. If he is denied a permit, he must then seek reasonably abailable administrative or judicial relief. Failure to do so precludes later assertion that his actions were protected by the 1st amendment.
SCOPE OF SPEECH
Includes freedom not to speak. The gov't may not compel an individual personally to express a message with which he disagrees.
The gov't may, however, tax people and use the money to express a message with which people disagree. Compelled support of gov't speech does not raise 1st amendment concerns.
On the other hand, people cannot be compelled to pay for private messages with which they disagree.
Speech includes not only verbal communication, but also conduct that is undertaken to communicate an idea.
A reg concerning the activities of prison inmates, including any 1st amendment speech activities, is governed by a different standard in order to facilitate prison order. The reg will be upheld if it is reasonably related to legitimate penological interests.
TIME, PLACE, AND MANNER RESTRICTIONS:
REGULATION OF CONDUCT --
PUBLIC FORUMS AND DESIGNATED PUBLIC FORUMS
The extent to which gov'ts may regulate speech-related conduct depends on whether the forum involved is a public forum, a designated public forum, or a non-public forum.
Public property that has historically been open to speech-related activities (streets, sidewalks, and public parks) is called a public forum.
Public property that has not historically been open to speech-related activities, but which the gov't has thrown open for such activities on a permanent or limited bsis, by practice or policy (school rooms), is called a designated or limited public forum.
The gov't may regulate speech in public forums and designated public forums with reasonable, time, place, and manner regulations.
- TEST: To be valid, gov't regulations of speech and assembly in public forums and designated public forums must:
- (1) be content neutral (ie, subject matter and viewpoint);
- (2) be narrowly tailored to serve an important gov't interest; and
- (3) leave open alternative channels of communication.
- [even is reg meets test above, it might still be struck on other grounds -- overbreadth, vagueness, unfettered discretion, etc]
- Injunctions that restrict 1st amendment activity in public forums are treated differently. The test to be used to determine whether an injunction is constitutional depends on whether the injunction is content neutral.
CONTENT BASED: it will be upheld only if it is necessary to achieve a compelling gov't interest.
CONTENT NEUTRAL: will be upheld only if it burdens no more speech than is necessary to achieve an important gov't purpose.
TIME, PLACE, AND MANNER RESTRICTIONS:REGULATION OF CONDUCT --
- Most public property is considered to be nonpublic forums. Speech can be regulated in these forums to reserve them for their intended use. Regulations will be upheld if they are:
- (1) viewpoint neutral; and
- (2) reasonably related to a legitimate gov'tal purpose.
They need not be content neutral, ie, some subjects and not others may be allowed. But must be viewpoint neutral