Free Speech
Free Speech: Protected Speech
Where protected speech is at issue, the level of scrutiny depends on whether the speech restriction is content-based
Free Speech
Free Speech: Content-Based Restriction
Occurs where the government seeks to restrict speech because of its content (i.e. based on subject matter or viewpoint)
- Strict scrutiny
Free Speech
Free Speech: Content-Neutral Restriction
Occurs where a government restriction applies to all expression regardless of the content or viewpoint
- Intermediate scrutiny
Free Speech
Free Speech: Unprotected or Lesser-Protected Speech
Some categories of speech receive lesser or no 1st Amend protection
E.g. obscenity, commercial speech
Free Speech
Freedom of the Press
Press has a right to publish matters of public concern
Any restriction or punishment must be narrowly tailored to further a state interest of the highest order (essentially strict scrutiny)
Free Speech
Free Speech: Public forums
Government property that the government is constitutionally required to make available for speech (e.g. sidewalk, park)
- Regulations must be content-neutral
- When held open for speech, analyze limited public forums as public forums
Free Speech
Free Speech: Public Forum Test
To be upheld, the restriction must:
1) Be content-neutral (i.e. only regulate time, place, or manner of speech)
2) Be narrowly tailored to serve an important government purpose
3) Leave open adequate, alternative channels of communication
- If the restriction is content-based, strict scrutiny applies
Free Speech
Free Speech: Limited/Designated Public Forum
Government properties that the govt opens for speech, but can close at any time
E.g. public school facilities for girl scout meetings, advertisements in govt spaces
- When closed for speech or restricted to certain types of speech, analyze as a non-public forum
Free Speech
Free Speech: Limited/Designated Public Forums Test
Same rules apply as for public forums, but only apply when the government property is open for speech
E.g. Must be content-neutral and strict scrutiny applies
Free Speech
Free Speech: Non-Public Forum
Government property that can be closed to speech
E.g. miltary bases, airports
Free Speech
Free Speech: Non-Public Forum Test
Government can regulate speech if the regulation is:
1) Reasonably related to some legitimate purpose; and
2) Viewpoint neutral
- Content-neutrality NOT required! Govt can allow speech on some subjects but not others, BUT if it opens speech to a subject it cannot limit speech to only one view
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The 11th Amendment & Sovereign Immunity4
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The Commerce Clause3
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Supremacy Clause & Preemption6
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Dormant Commerce Clause11
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Article IV Privileges & Immunities Clause7
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State Taxation of Interstate Commerce6
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Levels of Scrutiny3
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Substantive Due Process2
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Fundamental Rights & the Right to Privacy4
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Equal Protection Application & Analysis3
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Proving Discriminatory Classifications6
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Equal Protection Standards of Review3
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Right to Travel & Right to Vote Under Equal Protection4
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Free Speech Framework & Analysis11
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Defamation7
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Freedom of Religion6
