This is Part One of a three part review by Professor Leora Harpaz of the material covered in my First Amendment Rights course during the Fall, 2012 semester.

First Amendment Rights Review - Part One

I.  Nature of the Speech - General Approach

We began the course by considering various categories of speech. Some categories of speech were identified, defined and then excluded from the protection of the First Amendment (e.g., fighting words and obscenity). In one case, speech was classified as protected, but lesser value speech (commercial speech), and regulations that single out such speech based on its content are analyzed using the Central Hudson intermediate scrutiny test rather than strict scrutiny. In other cases, speech was identified as protected by the First Amendment and the Court created a rule or a series of rules that appropriately balanced the competing interests in protecting the category of expression versus the government’s interests in regulating or censoring the expression (e.g., libelous speech). In addition, some speech was identified as protected by the First Amendment and then subjected to ad hoc balancing based on the facts of a particular case rather than analyzed using a categorical approach (Cohen v. California).

There is often disagreement between the challenger and the government over how to characterize the speech that is the subject of regulation and alternative characterizations may be possible. In considering which category of expression particular speech fits within, the person challenging the government restraint on speech is always trying to argue for the most protective category. This results in the application of the most demanding standard of review (strict or intermediate scrutiny) if the regulation is based on the content of the speech. By contrast, the government, defending the restriction on speech, is always trying to argue for the least protective category of expression resulting in the least demanding standard of review (intermediate or reasonableness or rationality). Each side, however, always needs to alternatively argue that even under the alternative characterization proposed by their opponent, they would still win.

In characterizing speech, all speech is presumed to be fully protected by the First Amendment. The burden is on the government to show that the speech at issue should be treated as something other than fully protected because it falls within a category that the Court has subjected to something other than full protection. The challenger needs to either agree with the government's characterization of the category of the speech (if it isn't arguable that it doesn't fall within the asserted category) or argue that the government's position is erroneous and the speech shouldn't be characterized in the way that the government suggests. Because the category of speech will often effect the standard of review, the characterization of the speech can be an important aspect of First Amendment litigation.

II.  The Nature of the Speech - Specific Categories


A) Subversive Advocacy - defined currently by the Brandenberg incitement standard (page 46). This test has replaced the clear and present danger test which the Supreme Court used in earlier case law in this area. The Brandenburg test requires that, for the government to punish advocacy of violence or other lawlessness, the speech must consist of both (1) advocacy directed to inciting or producing imminent lawless action and (2) speech that is likely to incite or produce such action. The best evidence of whether speech is likely to produce imminent lawless action is if there actually was lawless activity immediately following the speech. In applying the Brandenburg test, the Court engages in a literal interpretation of the speech to determine whether it advocates immediate lawless action as compared to speech that advocates lawlessness at some future time or only conditionally.

B) Fighting Words - these are a narrowly defined unprotected category of speech that are defined as face to face words such as personal insults or epithets which by their very utterance are likely to cause a breach of the peace (see Chaplinsky - page 53). Fighting words, as very narrowly defined, remain a form of unprotected speech. Fighting words must be insults personally directed at the person they are addressed to and not political statements that the hearer finds deeply offensive to his or her beliefs. Therefore, it is necessary to distinguish between provocative political speech that is fully protected, such as the signs in Snyder v. Phelps, the jacket in Cohen v. California, and the flag burning in Texas v. Johnson, and unprotected fighting words.

C) Profanity - the Court protected foul language in Cohen v. California (page 56) when the language was used to express a political viewpoint. In that case, members of the public who objected to the language were told to avert their eyes as a remedy for exposure to such speech in a public place. However, in other contexts foul language may not be protected or may receive less protection. Profanity, when personally directed at the hearer, could fall into the category of fighting words. In addition, profanity that is broadcast on radio or television may subject a broadcast station to sanctions by the Federal Communications Commission as we saw in Pacifica. A minority of Justices, led by Justice Stevens, consider the category of profanity to be lesser value speech that receives less than full First Amendment protection, but no majority has ever accepted that view.


D) Feiner Incitement (page 61) - in Feiner, the Court upheld Feiner’s disorderly conduct conviction based on the fact that (1) his speech was inflammatory and (2) his speech provoked a hostile audience to threaten violence against him. This was combined with a situation that the police reasonably believed they would be unable to control if violence broke out. Even in a case like Feiner, it is important not to give the audience an absolute veto over the unpopular ideas of the speaker. Moreover, if the speaker does not go beyond “the bounds of argument or persuasion and undertakes incitement to riot” (page 62), the speech will still be protected as it was in Edwards (page 63), Cox (page 63) and Gregory (page 64). The Feiner precedent has not been applied by the Court to uphold punishment of a speaker in any subsequent case.

E) Libel - under New York Times v. Sullivan (page 68), libel (and defamation generally) is now protected speech, but is not absolutely protected. It loses that protection and the victim of the libel can be awarded civil damages if, in the case of public officials and public figures, the libelous statement consists of falsity published with actual malice (defined as knowledge of its falsity or reckless disregard of whether it is true or false). Under Gertz v. Robert Welch, Inc. (page 76), as to people who don’t qualify as public officials or public figures defamed in their public official or public figure capacity, if the subject of the publication is a matter of public concern, the state can impose liability for negligence and allow recovery for actual damages, but not presumed or punitive damages which require a showing of actual malice. Under Dun & Bradstreet v. Greenmoss Builders (page 77), if the subject of the libel is not a matter of public concern, the state is free to construct its libel law free of First Amendment constraints.

In other areas of tort law, plaintiffs cannot escape the limits of the New York Times rule by suing for some other tort such as intentional infliction of emotional distress as we saw in Hustler Magazine v. Falwell (page 79) and Snyder v. Phelps, the funeral protest case. In the privacy cases the Court has decided thus far, such as Cox Broadcasting Co. v. Cohn (page 82) and Florida Star v. B.J.F. (page 82), it has always protected the publication of true information against any claim of an invasion of privacy. However, each of these cases has been decided on a very narrow ground.

F) Hate Speech - most members of the Court have shown no inclination to create an additional category of unprotected speech to cover the category of hate speech. In R.A.V. v. City of St. Paul (page 88), the Court would not even allow the government to single out for punishment hate speech based on "race, color, creed, religion or gender" that fell within the unprotected category of fighting words. Instead, five members of the Court struck down a St. Paul Ordinance that attempted to punish such speech on the ground that the ordinance discriminated on the basis of content. The government would be free to punish all fighting words equally, but, in most circumstances, it was not entitled to punish a subcategory of such words based on the fact that those insults targeted specific characteristics, such as race or religion, but not other characteristics, such as political affiliation or sexual orientation. However, in Virginia v. Black, the Court allowed the punishment of cross burning done with an intent to intimidate because true threats and intimidation (see G below) are not protected by the First Amendment and because the state law applied to all cross burnings engaged in with an intent to intimidate and did not single out cross burning intended to communicate a particular message.

G) True Threats - the Court identified true threats as an unprotected category in Watts v. United States (page 98) and reaffirmed that classification in Virginia v. Black (page 99). In Black, true threats were defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Page 100). To be a true threat, “the speaker need not actually intend to carry out the threat.” True threats are distinguishable from political hyperbole, which is protected political expression, as the Court recognized in Watts. In Virginia v. Black, the Court also recognized that intimidation “is a type of true threat, where the speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” (Page 100). As a type of true threat, intimidation is also not protected by the First Amendment. In Virginia v. Black, the Court allowed Virginia to punish cross-burning with intent to intimidate, but the Court would not allow a presumption of intimidation to exist in every case of cross-burning. Cross-burning with the permission of the owner of the property and as part of a KKK ritual to symbolize Klan ideology and Klan unity could not be proscribed without actual proof of an intent to intimidate.

H) Obscenity - as defined by Miller v. California’s three prong test (page 109), obscenity is a form of unprotected speech. To be obscene, material must (1) be a work that the average person, applying contemporary community standards would find, taken as a whole, appeals to the prurient interest and (2) the work must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable obscenity law, and (3) the work, taken as a whole, must lack serious literary, artistic, political or scientific value.

I) Child Pornography - under New York v. Ferber (page 122), child pornography is an unprotected category of expression and consists of visual depictions of actual children engaged in sexual activity or the lewd exhibition of the genitals. Unlike obscenity, it is not judged by the work taken as a whole and, therefore, can consist of isolated segments of an entire work. It also is unprotected even if it doesn't appeal to the prurient interest or portray child sexual activity in a patently offensive manner. In addition, in contrast to obscenity, the Court has, thus far, not carved out an exemption for child pornography with serious value, although that issue has not been completely resolved. On the other hand, the reason for the Court’s willingness to allow child pornography to be prohibited is to protect actual children. Thus, child pornography is limited to visual images of actual children as we saw in Ashcroft v. Free Speech Coalition (page 125) where the Court struck down provisions of the Child Pornography Prevention Act that outlawed virtual child pornography where no actual child was used in the making of the child pornography. In United States v. Stevens (see J below), the Court interpreted the decision in Ferber, recognizing child pornography as a category of unprotected speech, as relying on the fact that the distribution of child pornography was "an integral part of the production of such materials, an activity illegal throughout the Nation" (see K below).

J) Depictions of Animal Cruelty, Violent Video Games and the Stolen Valor Act - Three Terms ago in United States v. Stevens, the Supreme Court rejected an argument that depictions of animal cruelty should be treated as an unprotected category of speech because the behavior depicted is illegal and the slight value of the speech is outweighed by the government interest in combatting animal cruelty. In his opinion, Chief Justice Roberts strongly criticized the argument that speech could be categorized as unprotected on the basis of balancing its value against its societal costs. Moreover, the Court concluded that speech does not have to have serious value in order to be protected by the First Amendment. While the Court did not categorically state that no additional categories of unprotected expression can be added to the list of existing unprotected categories, it did state that there must be a long history and tradition of government regulation of the category of speech as falling outside the First Amendment to justifiy the creation of a category of unprotected speech. Two Terms ago in Brown v. Entertainment Merchants Association, the Court decided that violent video games are protected expression as applied to minors, once again basing its decision on how the category of speech has been treated historically and therefore distinguishing between the history of the treatment of sexually explicit speech and the absence of any similar history in the case of depictions of violence. Last Term, in United States v. Alvarez, the Court relied on a similar analysis in striking down the Stolen Valor Act as a violation of the First Amendment because there was no general history of the treatment of false factual statements as speech the government is free to regulate due to its unprotected content. In each of these three cases, after rejecting the argument that the speech was unprotected, the Court applied the strict scrutiny test and struck down the law as unconstitutional.

K) Speech that is Integrally Related to the Commission of a Crime - speech that is integrally related to the commission of a crime, such as in connection with a bank robbery ("Put all the cash in this bag"), bribery ("I'll give you $10,000 if you vote to approve my request for a zoning variance") or similar speech is not protected by the First Amendment. The Court relied on this category recently in United States v. Stevens to explain its decision in New York v. Ferber as based on the connection between the distribution of child pornography and the illegal conduct of producing child pornography. The question that remains unresolved is whether this category of speech will be expanded to include some forms of speech that facilitate the commission of a crime, but are not part of the crime itself. Examples would be instructions on how to build a bomb, evade taxes, or hack into a database of secret government information. The Court rejected an argument that rested on this crime facilitation justification in
Ashcroft v. Free Speech Coalition (page 125) when the government unsuccessfully argued that the distribution of virtual child pornography should be punished because it "whets the appetites of pedophiles and encourages them to engage in illegal conduct." The Court stated: "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."  

L) Sexually Explicit Nonobscene Speech or Indecent Speech - some members of the Court, but not a majority, have argued that such speech deserves less protection because of its slight social value. In a series of zoning cases, the Court has upheld less than total bans on such speech under the intermediate scrutiny test because it characterized the zoning laws as reasonable time, place or manner restraints by finding the laws to be content neutral in the sense that the government's purpose was unrelated to an effort to suppress expression (this analysis relies on the secondary effects analysis of Renton - page 140). The Court has not been not willing to use this form of reduced scrutiny to evaluate total bans on sexually explicit nonobscene speech (such as in Schad - page 136). The Court generally is willing to uphold bans on child access to such material so long as adults are permitted access to the material. A ban on adult access in order to protect children was upheld in the case of broadcasting (radio and television) because broadcasting is a less protected medium of expression (See Pacifica - page 145 - in which the Court upheld the FCC's ban on broadcast indecency as applied to George Carlin's Seven Dirty Words monologue). However, similar bans that reduce adult access to protect children where less restrictive alternatives exist have been struck down in the case of the internet, the telephone (Sable Communications, Inc. v. FCC - page 152), and cable television. The Court has reviewed Congressional efforts to regulate the internet so as to protect children from exposure to pornography on three occasions. The first time in Reno v. ACLU (page 155), it struck down key provisions of the Communications Decency Act (CDA) because it found the statute to be a content-based regulation of protected expression disseminated via a fully protected means of communication. Analyzed under strict scrutiny, the government failed to demonstrate an absence of less restrictive alternatives. In two encounters with the Child Online Protection Act (COPA), the somewhat narrower statute Congress enacted as a successor to the CDA, the Court did not rule definitively on the merits of the First Amendment claim. However, its most recent decision analyzing COPA, a review of a preliminary injunction issued by the district court, suggested that COPA may be invalid because filterning software is a less restrictive and equally effective means to control child access to internet materials, one of the same reasons the Court used for striking down the CDA. On remand, COPA was struck down on the merits by the Third Circuit on that ground and the Supreme Court refused to review the decision.

There are large differences between speech that is obscene and speech that is indecent. Obscene speech receives no First Amendment protection and can be regulated if the government can satisfy minimum scrutiny under the Due Process Clause. That means distribution of obscene materials can be made a crime as long as there is a rational relationship between the means and the ends. By contrast, indecent speech is protected by the First Amendment and some regulations of indecency are subject to strict scrutiny (as in United States v. Playboy Entertainment Group, Inc. and Reno v. ACLU where the Court reviewed content-based regulations of indecent speech using strict scrutiny) and some are subject to intermediate scrutiny (as in Renton v. Playtime Theatres and FCC v. Pacifica Foundation).

In terms of the differences between the two categories of speech focusing on their content or how they are defined, obscenity is defined in Miller v. California. Under that definition, to be obscene, material must (1) be a work that the average person, applying contemporary community standards would find, taken as a whole, appeals to the prurient interest and (2) the work must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable obscenity law, and (3) the work, taken as a whole, must lack serious literary, artistic, political or scientific value. Indecency is not a category of speech that the Supreme Court has defined, but instead it is defined in various statutes and regulations that employ the concept. The current generic definition of indecency used by the FCC to regulate broadcast radio and television is "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standard for the broadcast medium, sexual or excretory activities or organs." Differences between obscenity and the FCC's definition of indecency include: (1) speech cannot be obscene if it has serious value, but speech can be indecent even if it has serious value; (2) speech can only be obscene if it appeals to the prurient interest, but speech can be indecent no matter what its appeal (for instance if it uses offensive words for humorous or political effect); (3) speech can only be obscene if it is specifically defined in an applicable obscenity law, while statutes and regulations that single out indecent speech may not define the term at all (creating problems of vagueness) or, if they do they define it, may use generic, general definitions rather than specific ones; and (4) obscenity must be based on the character of the work taken as a whole rather than examining a part of the work while indecency can be judged by a part of a work. All of these differences mean that the definition of indecency is much broader than the definition of obscenity. Indecency is not a category of speech that has been defined by the Supreme Court and singled out for special treatment, such as in the case of commercial speech, instead it just falls into the general category of fully protected expression and is only subject to less than strict scrutiny if there is some special reason to do so like in the context of the broadcast medium or if the regulation is a reasonable time, place, or manner regulation.


M) Commercial Speech - the Court decided that commercial speech, including speech that does no more than propose a commercial transaction, is protected by the First Amendment in its 1976 decision in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council. However, the Court, while protecting the speech, also recognized that there were commonsense differences between commercial speech and other varieties of expression, thus meriting less than full First Amendment protection. In examining regulations of commercial speech, the Court uses the 4-part Central Hudson test (page 177) which subjects the regulation to intermediate scrutiny review even though it is based on the content of the speech. Under that test, commercial speech is protected only if it concerns lawful activity and is not false or misleading. Even protected commercial speech can be regulated if the government can show that (1) the regulation promotes a substantial governmental interest; (2) the regulation directly and materially advances that interest; and (3) the regulation is narrowly tailored. The requirement of narrow tailoring does not require that the government use the least restrictive alternative. It requires instead that the means chosen must not be substantially broader than necessary to achieve the government’s interest. It is important to examine other available means under this test to evaluate whether this standard is met.

The Court has often struck down regulations of commercial speech for failing to satisfy the narrowly tailored means prong of the Central Hudson test. Alternatives means that should be considered include non-speech related means which the Court views as preferable to speech-related forms of regulation and more narrowly tailored regulations of commercial speech. The Court is particularly likely to strike down a regulation of commercial speech if the government seeks to keep information out of the hands of consumers out of a fear that the information may be misused (44 Liquormart, Inc. v. Rhode Island - page 186). By contrast, the Court has upheld several regulations that concern themselves with a particular means of delivering information and seek to level the playing field between the advertiser and the recipient of the information such as a ban on in-person solicitation by attorneys seeking to represent potential clients who have recently been in an accident (Ohralik v. Ohio State Bar Association - page 174).

In several recent cases, the Court has relied on the absence of protection for commercial speech if it concerns an illegal activity or if it is false or misleading as a justification for rejecting a First Amendment challenge.
Using this rationale, the Court has upheld regulations that mandate the disclosure of additional information when that information is necessary for consumers to get an accurate understanding of the advertised good or service. In Milavetz, Gallop & Milavetz, P.C. v. United States, the Court made clear that disclosure requirements that target misleading commercial speech (a variety of commercial speech that is not protected by the First Amendment) will be upheld as long as they "are reasonably related to the State's interest in preventing deception of consumers" rather than applying the more rigorous Central Hudson test. Mandatory disclosure requirements are much less likely to be constitutionally acceptable outside the realm of commercial speech.

The absence of protection for speech that advertises or offers to sell or provide an illegal product also has been used to uphold statutes that punish offers to provide illegal speech such as obscenity or child pornography. A similar rationale would apply to punishing persons who offer to sell illegal arms for use by terrorist groups and is distinguishable from the kind of advocacy that the Court addresses in Brandenburg. Advocating imminent lawless action, according to the Court, is different from offering to sell illegal products that could be used to engage in such lawless activity.

Another aspect of the commercial speech cases is that the Court is only willing to allow the government to single out commercial speech and subject it to a regulation that is not also imposed on fully protected speech in situations where the state’s objective is related to a problem created by the specific content of the commercial speech. By contrast, if commercial speech and political speech both contribute equally to the problem the government is trying to solve, the government can’t impose the solution exclusively on commercial speech because of its less-protected status. This can be seen in the City of Cincinnati v. Discovery Network case (page 181) where the government regulated newsracks on city streets and the Court concluded that commercial speech was entitled to the same treatment as political speech when the interest the government sought to protect was esthetics and both varieties of speech contributed equally to the problem the government sought to correct.

Because commercial speech restrictions are subject to intermediate scrutiny and are in other ways treated differently than fully protected speech (for example, false commercial speech is not protected while false political speech is), it is important to be able to distinguish between commercial speech and other varieties of fully protected speech. While no explicit test has been adopted to distinguish between commercial speech and political speech, the Court has identified several factors that are useful in identifying commercial speech: (1) the motive of the speaker to promote a product or service; (2) whether the speech is in the form of an advertisement; and (3) whether the speech mentions a specific product name. Using these criteria, the Court has been willing to characterize speech as commercial despite the fact that it contains discussions of important public issues so long as the overall purpose of the speech was to market a commercial product (see Bolger v. Youngs Drug Products Corp. - page 172). However, the Court has also made it clear that the existence of a commercial motivation alone does not deprive speech of full First Amendment protection. Any contrary rule would deprive all for-profit speech including newspapers, movies, books, magazines, etc. of full First Amendment protection.