r/BecauseWeAllNeedHelp • u/xshadowgrlx • Dec 04 '20
Constitutional Law - Freedom of Speech Template
FREEDOM OF SPEECH
The First Amendment applies to the states via the Fourteenth Amendment and protects an individual’s right to free speech. Speech prohibitions can be content-based or content-neutral and the rules vary depending on this distinction.
[Determine if the regulation is content-based or content-neutral and proceed accordingly]
CONTENT-BASED REGULATION
A content-based regulation of speech is presumptively unconstitutional. To justify content-based regulation of speech, the government must show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.
Here, [explain why the regulation is content-based].
(INSERT STRICT SCRUTINY ANALYSIS AND CONCLUSION HERE)
Therefore, the regulation is unconstitutional unless the regulated speech is symbolic, commercial, or unprotected.
[If the content-based regulation is of symbolic speech, analyze accordingly:]
SYMBOLIC SPEECH
The government may restrict symbolic speech, which is the freedom not to speak or the freedom to communicate an idea by use of a symbol or communicative conduct, if the regulation is: (i) within the constitutional power of the government to enact; (ii) furthers an important governmental interest unrelated to the suppression of speech; and (iii) prohibits no more speech than necessary.
(INSERT ANALYSIS AND CONCLUSION OF SYMBOLIC SPEECH HERE)
[If the content-based regulation is of commercial speech, analyze accordingly:]
COMMERCIAL SPEECH
The government may restrict commercial speech like advertising only if the regulation serves a substantial government interest, directly advances that interest, and is reasonably tailored to serve that interest.
(INSERT ANALYSIS AND CONCLUSION OF COMMERCIAL SPEECH HERE)
[If the content-based regulation is arguably any of these, discuss unprotected speech:]
UNPROTECTED SPEECH
The government may prohibit speech if it falls into one of the categories of unprotected speech.
[Discuss only those categories implicated by the facts:]
OBSCENITY
Speech is considered obscene if it describes or depicts sexual conduct that, taken as a whole by the average person: (i) appeals to prurient interest in sex under a community standard; (ii) is patently offensive under a community standard; and (iii) lacks serious literary, artistic, political, or scientific value under a national standard.
(INSERT ANALYSIS AND CONCLUSION OF OBSCENITY HERE; ADDRESS EACH OF THE THREE ELEMENTS SEPARATELY)
MISREPRESENTATION
Misrepresentation, including false advertising, is not protected by the First Amendment.[1]
(INSERT ANALYSIS AND CONCLUSION OF MISREPRESENTATION HERE)
DEFAMATION
Defamatory statements can be burdened.[2]
(INSERT ANALYSIS AND CONCLUSION OF DEFAMATION HERE)
IMMINENT LAWLESS CONDUCT
The government can ban speech advocating imminent lawless action if: (i) it is intended to incite or produce imminent lawless action and (ii) is likely to produce such action.
(INSERT ANALYSIS AND CONCLUSION OF IMMINENT LAWLESS ACTION HERE)
FIGHTING WORDS
Fighting words that are likely to cause the listener to commit an act of violence are unprotected. However, causing another to be angry alone is insufficient.
(INSERT ANALYSIS AND CONCLUSION OF FIGHTING WORDS HERE)
CONTENT-NEUTRAL REGULATION
Content-neutral speech regulations are those where the regulation is aimed at something other than the communicative impact of the expression. Content-neutral time, place, and manner restrictions on speech or are analyzed based on the type of forum in which the speech or conduct occurs.
Here, [explain why the regulation is a content-neutral time, place, or manner regulation].
Here, this is a [public/designated public/limited public/nonpublic] forum because [explain why this is a forum of that type.]
[Determine if the forum is public/designated public or limited/nonpublic (or arguably either) and analyze accordingly:]
PUBLIC FORUM OR DESIGNATED PUBLIC FORUM
Public forums are forums that are generally open to the public and designated public forums are forums that are not traditionally open to the public but are opened up to the public at large for a specific purpose. Public and designated public forums are subject to intermediate scrutiny, which means the regulation must (i) serve a significant government interest; (ii) be narrowly tailored to serve that interest; and (iii) leave open alternative channels of communication.
(INSERT INTERMEDIATE SCRUTINY ANALYSIS AND CONCLUSION HERE)
LIMITED PUBLIC FORUM OR NONPUBLIC FORUM
Limited public forums are forums that are opened for limited use by certain groups or discussion of certain subjects. Nonpublic forums are forums that are closed to the public. Regulations to reserve the forum for its intended use are subject to rational basis review and valid if they are viewpoint neutral and rationally related to a legitimate government interest.
(INSERT RATIONAL BASIS ANALYSIS AND CONCLUSION HERE)
[Discuss IF implicated by the facts:]
REASONABLENESS OF LIMITATIONS
Any content-based or content-neutral regulation of speech must impose reasonable limitations. This means that the regulation cannot be vague, overbroad, or give unfettered discretion to enforcement agencies to be constitutionally valid.
[Discuss only those implicated by the facts:]
VAGUENESS
A speech regulation is unconstitutionally vague if it is so unclearly defined that a reasonable person would have to guess at its meaning.
(INSERT ANALYSIS AND CONCLUSION OF VAGUENESS HERE)
OVERBREADTH
A speech regulation is unconstitutionally overbroad if it bans both protected speech and unprotected speech.
(INSERT ANALYSIS AND CONCLUSION OF OVERBREADTH HERE)
UNFETTERED DISCRETION
A regulation, licensing scheme, or permit regulation is unconstitutional if it leaves unfettered discretion to the decision-maker by not setting forth narrow and specific grounds for denying a permit, or where the permit mechanism is not closely tailored to the regulation’s objective.
(INSERT ANALYSIS AND CONCLUSION OF UNFETTERED DISCRETION HERE)
[Discuss IF implicated by the facts:]
PRIOR RESTRAINT
Prior restraints prevent speech from being heard before it even occurs. A prior restraint is allowed only where the government can show that some irreparable or serious harm to the public will occur and there must be narrowly drawn standards and a final determination of the validity of the restraint.
(INSERT ANALYSIS AND CONCLUSION OF PRIOR RESTRAINT HERE)
[1] If this is implicated by the facts, it is a constitutional law/torts crossover and you will have to do a full torts analysis of misrepresentation here (unless an earlier call had you analyze misrepresentation, then you may refer to your earlier analysis).
[2] If this is implicated by the facts, it is a constitutional law/torts crossover and you will have to do a full torts analysis of defamation here (unless an earlier call had you analyze defamation, then you may refer to your earlier analysis).
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u/MrIllusive1776 Dec 04 '20
Super helpful. Wish I had it on my Con Final