Speech, Press & Association — Constitutional Law

Two sign ordinances, same city, same subject. The first bans any sign commenting on a candidate or a ballot measure within 500 feet of a polling place. The second bans all signs larger than four square feet on a residential lawn, whatever they say, to keep neighborhoods tidy. One is almost certainly unconstitutional. The other is fine. Why?

Because of one question. Does an officer have to read the sign to know whether the rule applies? For the first, yes. That makes it content-based, and content-based laws get strict scrutiny, which almost nothing survives. For the second, no. Content-neutral, and a much gentler test. That single fork decides more questions in this topic than anything else.

Here is the route. First the funnel, the fixed sequence you run on every speech problem. Then content-based versus content-neutral, and the four forums. Expressive conduct. The unprotected categories. Commercial speech. Government employees and students. Prior restraint, vagueness, and overbreadth. Then the press, and finally association and campaign money.

Start with the funnel, because discipline beats intuition here. Question one. Is it speech? Words obviously are, and some conduct counts too, if it is meant to send a message. Question two. Does it fall into an unprotected category? Incitement, fighting words, true threats, obscenity, child pornography, defamation, or fraud. If so, the government has broad power, but never power to discriminate by viewpoint.

Question three. If the speech is protected, is the regulation content-based or content-neutral? Question four. Where is the speech, because on government property the forum sets the standard. And question five. Is there a special context, or a cross-cutting doctrine like prior restraint. Identify the box, apply the matching standard, and you have your answer.

A regulation is content-based if it draws lines according to the message. The topic, the subject matter, or the idea. No signs about politics is subject-matter based. No signs criticizing the mayor is viewpoint based, the worst kind. A law is also content-based if it cannot be justified without reference to what is said, or if officials adopted it out of disagreement.

And content-based means strict scrutiny. The government must prove the law is necessary, narrowly tailored, using the least restrictive means, to serve a compelling interest. Most content-based speech laws flunk it. Government does not decide which ideas the public hears, and the answer to bad speech is more speech.

Viewpoint discrimination sits in a category of its own. Virtually per se invalid, and forbidden in every forum. Even inside an unprotected category, the government cannot ban only the fighting words that express a disfavored political idea.

Content-neutral is the other branch. The government can regulate the logistics of speech, when, where, and how, without touching the message. A time, place, and manner restriction in a public forum is valid only if it clears three requirements. Content-neutral, in text and in purpose. Narrowly tailored to a significant government interest. And it leaves open ample alternative channels.

Narrowly tailored here is softer than it sounds. It does not mean the single least restrictive option. It means the law cannot burden substantially more speech than necessary. Reasonable noise limits, parade permits, rules against blocking sidewalks. All classic, all valid.

Then the forums, and there are four. Traditional public forums are places historically open to expression. Streets, sidewalks, parks. Designated public forums are property the government has affirmatively opened for general expressive use. In both, content-based restrictions get strict scrutiny and content-neutral ones get that three-part test.

A limited public forum is opened only for certain groups or subjects, like a school room available to student clubs. A nonpublic forum was never opened to speech at all. A military base, a jail, a government office, government-controlled ad space. In both, a restriction is valid if it is reasonable in light of the forum's purpose and viewpoint-neutral.

Reasonableness is a low bar. Viewpoint neutrality is not, and it is required everywhere. The practical question is always which box you are in, because the box picks the test.

Try one. A city requires a permit, applied for 48 hours ahead, for any gathering of more than 50 people in a downtown park. There is a flat fee for cleanup. Valid, or not?

Valid. A park is a traditional public forum, so the rule must clear the three-part test. It is content-neutral, crowd safety and sanitation are significant, and ample alternatives stay open. But change one fact. Suppose the parks director could grant or deny permits as the public interest requires, with no standards. Now it fails, because unbridled discretion over speech invites hidden viewpoint discrimination.

Now conduct. Some conduct communicates as powerfully as words. Burning a flag, wearing a protest armband, a silent sit-in. Conduct counts as expression when the actor intends to convey a particularized message and the audience is likely to understand it. Once it is expressive, the scrutiny turns on why the government is regulating.

If the interest is unrelated to suppressing the message, courts apply an intermediate test, commonly called the O'Brien test. The regulation must be within the government's power. It must further an important or substantial interest. That interest must be unrelated to the suppression of expression. And the incidental restriction must be no greater than necessary.

Same act, two results. A state makes it a crime to light an open fire on a public sidewalk without a permit. Dana burns a political banner there to protest a new law. Which test? The conduct test, and the law likely stands, because the fire rule targets flames, not any message.

Now change the statute. It is a crime to burn or deface any political banner in a manner likely to offend onlookers. That targets the offensive message itself. Content-based, strict scrutiny, almost certainly unconstitutional. The physical act is identical. The government's reason for regulating decides the case.

The unprotected categories now, and two cautions. The boxes are narrow, so most offensive or hateful speech does not fit and stays fully protected. There is no general hate speech exception in American law. And even inside a box, no viewpoint discrimination.

Incitement first. Advocating law-breaking is usually protected. You can argue in the abstract that a law is unjust and should be broken. The government may punish advocacy only when the speech clears a two-part bar, often called the Brandenburg test. Directed to inciting imminent lawless action, and likely to actually produce it.

Both halves matter. A speaker who whips up a crowd to storm a building right now can be punished. A speaker who says society should rise up someday cannot. Imminence is what protects the vast bulk of angry, radical rhetoric.

Fighting words next, and the category is real but extremely narrow. Face-to-face personal insults, directed at a specific individual, likely by their very utterance to provoke immediate violence. Not generally offensive speech. Not profanity. A related problem is the heckler's veto. When a protected message angers listeners, officials must protect the speaker and control the crowd, not silence the speaker.

True threats. A statement a reasonable listener would understand as a serious expression of intent to commit unlawful violence against a particular person. But listener perception alone is no longer enough. The government must also prove the speaker was at least reckless, consciously disregarding a substantial risk the words would be heard as threatening.

Obscenity. Unprotected, but the constitutional definition is narrow, so most sexually themed material stays protected. A work is obscene only if it satisfies all three parts of the Miller test.

One. An average person, applying contemporary community standards, finds the work as a whole appeals to the prurient interest. Two. It depicts sexual conduct in a patently offensive way, specifically defined by the statute. Three. Taken as a whole, it lacks serious literary, artistic, political, or scientific value. And that third prong uses a national standard, not a local one.

Two wrinkles. Private possession of obscene material in your own home generally cannot be punished. The offense is distribution or production. And child pornography is a separate category, bannable even without meeting the Miller test.

Defamation gets a constitutional overlay, and two variables decide it. Who the plaintiff is, and what the speech is about. A public official or public figure on a public-concern matter must prove actual malice, meaning knowledge of falsity or reckless disregard, never ill will. A private figure needs only negligence, but still needs actual malice for presumed or punitive damages. And on any public-concern matter, the plaintiff proves falsity.

Commercial speech proposes a commercial transaction. Advertising, commercial signs. Protected, but at a lower level. And a threshold ends many questions immediately. Commercial speech that is false, misleading, or that advertises an illegal product gets no protection at all.

If it is truthful and concerns lawful activity, the government must satisfy the four-part Central Hudson test. The speech concerns lawful activity and is not misleading. The asserted interest must be substantial. The regulation must directly and materially advance it. And it must be no more extensive than necessary, a reasonable fit between ends and means.

Which is why flat bans on truthful information about lawful products are strongly disfavored. A state that bans all advertising of retail liquor prices, hoping to promote temperance, likely loses. The ban does little to directly advance temperance and is far broader than needed. And one sign rule. Distinguishing signs by location, regulating off-premises billboards more strictly, is content-neutral. It turns on where the sign sits, not the idea.

Government employees now, and there is a crucial first fork. If a public employee speaks pursuant to official job duties, the speech is essentially the government's own, and the employer may discipline it freely. If the employee speaks as a citizen on a matter of public concern, the court balances. That is Pickering balancing.

Weigh the employee's speech interest against the government's interest in an efficient workplace. A police officer's internal report, written as part of the job, is unprotected from discipline. The same officer's op-ed, on their own time, exposing corruption, is likely protected.

Students keep their rights at school, but the baseline is disruption. A school may discipline expression that would materially and substantially disrupt the educational environment or invade the rights of others. Beyond that, schools may restrict lewd speech, control school-sponsored expression, and restrict speech promoting illegal drug use at a school event.

Then unconstitutional conditions. The government generally may not condition a benefit on giving up a constitutional right, even though nobody is entitled to the benefit. No right to the benefit is not an answer. But it may choose what to subsidize. Defining what its own grant pays for is fine. Leveraging a benefit to suppress outside speech is not.

Prior restraint blocks speech before it happens. An injunction not to publish, or a licensing rule requiring advance permission. It is the most disfavored speech regulation there is, carrying a heavy presumption of invalidity. Embarrassment and inconvenience come nowhere close. A licensing scheme needs narrow, objective standards and prompt review.

Two facial attacks close this part. A law is void for vagueness if it gives no fair notice of what is prohibited, or invites arbitrary enforcement. A law is overbroad if it restricts substantially more speech than the Constitution allows. And overbreadth relaxes standing, letting a speaker whose own speech could be regulated attack the law facially, because its existence chills others.

The press clause gives journalists no special privileges beyond the general public's. The government may not punish the press for publishing truthful information on a public-concern matter it lawfully obtained. That holds even when the source got it unlawfully, so long as the publisher did not participate. There is a qualified right of access to criminal trials, so a blanket courtroom-closure rule is invalid.

Freedom of association is implicit in speech and assembly. The right to join with others to advocate ideas, and the mirror-image right not to associate. And to penalize someone for group membership, the government must prove active membership, knowledge of the illegal aims, and specific intent to further them.

Then campaign money, the line the exam loves most. Limits on contributions, on what you give to a candidate or committee, get a lower, closely drawn scrutiny and are generally upheld. They curb quid pro quo corruption while barely burdening the donor's own speech.

Limits on independent expenditures, money you spend on your own political speech with no coordination, burden core speech directly. Strict scrutiny, and generally invalid. Independent spending by individuals, corporations, and unions may not be banned. Aggregate caps across all recipients are invalid, though base limits per recipient stand. Disclosure requirements are generally upheld.

A word on authorities. This episode named five cases, which is unusual for us. O'Brien, Brandenburg, Miller, Central Hudson, and Pickering. Every one is a label for a test, not a story you need to retell. NextGen questions will not ask who the parties were. They hand you an ordinance and ask which standard applies, and these names are how your outline files those standards.

If you keep only three things, keep these. One, the content-based versus content-neutral fork, because it sets the entire level of scrutiny. Two, the four-forum grid, and the fact that viewpoint discrimination is forbidden in every one of them. Three, contribution limits are generally valid and independent expenditure limits generally are not.

Now the traps, straight from the examiners' favorites. One. Forgetting state action. The First Amendment restrains the government, not private censors. Two. Skipping the content-based fork, which sets the whole level of scrutiny, and missing that viewpoint discrimination is almost never allowed even in a nonpublic forum. Three. Mixing up the forum standards.

Reasonableness plus viewpoint neutrality applies only in limited public and nonpublic forums, never in streets and parks. Four. Treating offensive or hate speech as unprotected. There is no such exception. Five. Blurring the category tests. Incitement needs imminence, fighting words need a face-to-face insult, true threats need recklessness.

Six. Reading actual malice as ill will. Seven. Forgetting that false or misleading commercial speech gets no protection at all. Eight. Analyzing an employee's official-duty speech as citizen speech. Nine. Thinking no right to the benefit defeats an unconstitutional-conditions claim. Ten. Under-weighting the presumption against prior restraints.

And above all, eleven. Flipping the campaign-finance rule. Contribution limits are generally valid. Independent expenditure limits generally are not.

Time for the quick check, and this one comes straight from the BARGO question bank. A legislature enacts two campaign-finance rules. The first caps at $3,000 what any individual may contribute directly to a candidate's committee. The second caps at $10,000 what an individual may spend independently, with no coordination with any candidate, on their own advertisements supporting a candidate.

How should a court rule on the two caps? Option one. Both are valid, because all campaign-finance limits prevent corruption. Option two. The contribution cap is likely valid, but the independent expenditure cap is likely invalid. Option three. The contribution cap is likely invalid, but the expenditure cap is likely valid. Pause here if you want a moment.

The answer is option two. Contribution limits get a lower, closely drawn standard and are generally upheld. They curb the reality and appearance of quid pro quo corruption while only marginally burdening the donor's own expression. Independent expenditure limits restrict core political speech directly, get strict scrutiny, and generally fall.

Option one ignores that independent expenditures cannot be capped merely to equalize voices. Option three exactly inverts the rule, the single most common trap in this area. If you remember only one direction, remember that giving can be capped and spending your own money cannot.

There are thirty plus more questions on this topic alone, each with every option explained like that.

Five things to take away. One. Run the funnel every time. Is it speech, is it an unprotected category, content-based or content-neutral, what is the forum, and is there a special context. Two. Content-based means strict scrutiny, and viewpoint discrimination is forbidden everywhere.

Three. Content-neutral in a public forum means the three-part test. Narrowly tailored to a significant interest, with ample alternative channels open. In a limited public or nonpublic forum, only reasonable and viewpoint-neutral.

Four. The category tests are narrow and specific. Brandenburg for incitement, a face-to-face insult for fighting words, recklessness for true threats, Miller for obscenity, Central Hudson for commercial speech. Five. Contribution limits are generally valid. Independent expenditure limits generally are not.

Which is why one sign ordinance falls and the other stands. Ask whether an officer has to read the sign. That closes out Constitutional Law.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.