COMM403:

Lesson 2 Overview

 

Introduction

Welcome to Lesson 2 of Communications 403. In this lesson, we will begin to build the foundation of your knowledge of First Amendment law. We will look at how courts decide cases that raise First Amendment challenges. We also will examine the constitutional doctrines and tests that courts apply in handling these challenges. We will look at some current cases that address a particular subset of the population—minors—to see how the rights of the younger population of society differ from those of adults. Those cases also provide us with an illustration of how constitutional tests and doctrines apply in practice.

And speaking of cases, in this lesson (and subsequent lessons) you will be able to access synopses of critical freedom-of-expression cases to get a sense of how courts, including the U.S. Supreme Court, apply the tests or doctrines in order to resolve disputes. When you see a reference to a case in this lesson, you can read the case abstract at that point to get a fuller understanding of the legal issues in play.

Objectives

Here are the objectives for this lesson:

• apply constitutional tests and doctrines to First Amendment challenges,
• understand how concepts such as public forum enhance free speech, and
• recognize that the First Amendment rights of minors vary from those of adults.

Lesson Readings and Activities

You may have questions or comments in response to this lesson's content. Post them to the Course Cafe, which may be accessed through the course navigation menu.

By the end of this lesson, make sure you have completed the readings and activities found in the Lesson 2 Course Schedule.

 

Constitutional Tests and Doctrines

Over time, courts have developed certain tests and doctrines to determine the constitutionality of laws created by legislative and regulatory bodies. The test applied depends largely upon the law’s intended effect on speech or expression. Let’s begin by examining the influence laws can have on speech. Laws can be

• content neutral,
• content specific, or
• viewpoint based.

The best way to understand how constitutionality is determined for these types of laws is to work through some examples. For instance, a city council adopts an ordinance that says it is a violation of law to distribute handbills of any kind in the downtown historic district during the three-week Summerfest Celebration held each August. Anyone who violates the ordinance will be fined $100. In the past, city officials have found that attendees accept the handbills from people during the festival and then promptly toss them on the ground—creating an eyesore of litter and forcing the city to pay overtime to sanitation workers to clean the streets each night. Notice that the ordinance does not at all address the content of the handbills. It really doesn’t matter what the handbill says. After all, litter is litter. This is what’s referred to as a content-neutral, time, place, and manner restriction on speech.

• Time: The three weeks of the Summerfest Celebration
• Place: Downtown historic district
• Manner: Handing out literature on the street

The city council was careful not to refer to the content on the handbills for good reason. By keeping the ordinance content neutral, the council will have an easier time winning a lawsuit if someone who is fined for distributing handbills challenges the ordinance on First Amendment grounds. To be upheld in court, this type of law must meet the intermediate scrutiny test. Here’s how it works: The government (in this case, the city council) must demonstrate

• a substantial or important governmental interest,
• that the law is narrowly tailored to address that interest, and
• ample alternative avenues of communication available to the speaker.

If the government can show these metrics exist, then the court will find the law to be constitutional. In our example, the city would argue that the ordinance is needed to keep the streets free of litter and thus save the taxpayers from having to pay overtime costs to the street sweepers. The law is narrowly drawn to handle the problem that exists just in the historic district during that three-week period. Furthermore, there are plenty of other ways to get one’s message out there.  The speaker can use a bullhorn, take out an ad in the festival guide, put up a billboard or hold up a sign—just to name a few alternatives.

Now, let’s change the example.  What if the ordinance instead said it would be a violation to distribute political handbills during the festival? That’s a dramatic change—one that necessitates a much higher level of scrutiny by the courts. Why? Because now the law is singling out a particular type of content, rendering the ordinance content specific. As a democratic society, we don’t want the government to regulate the content of our expression. Consequently, when the government creates a law regulating speech based upon its content, it faces a heavier burden to show that the law is constitutional. For this type of law to be upheld in the courts, it must meet the strict scrutiny test. With this test, government has the burden to show

• a compelling governmental interest and
• that the government is using the least restrictive means to achieve that interest.

A compelling government interest means that it is an interest of the highest order; that is, it is vital to preserving the safeties, freedoms, rights, etc., of citizens. Moreover, the law must be absolutely necessary to achieve that compelling interest. If there is another way (besides this particular law) to address the situation, then the government must do it. In other words, if there is a less restrictive way to achieve the interest, the law will be declared unconstitutional. So, in our example of the handbill ordinance, the government would be hard pressed to show that restricting political literature is somehow necessary. And while keeping the streets clean during the festival might be an important interest, it most likely is not an interest of the highest order; that is, it is not vital to the city’s interests. Moreover, political literature is no more an eyesore than any other type of handbill.

Strict scrutiny is the highest level of judicial review, and laws that are subjected to it rarely survive the challenge. In fact, the Supreme Court has said that "content-based regulations are presumptively invalid."

Viewpoint-based laws will not survive a constitutional challenge. For instance, if city council had adopted an ordinance that said no anti-abortion literature shall be distributed in the downtown historic district—thereby allowing pro-choice handbills—the law would be unconstitutional. How could city council say that restricting one side of a debate reflects the city’s interest of the highest order? In short, it cannot.

As the Supreme Court has noted, with respect to governmental restriction on specific content: “Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion" (Turner, 1994).

In summary, when determining which test applies to a particular law being challenged on First Amendment grounds, we must first decide whether the law is content neutral, content based, or viewpoint based. The latter two types of restrictions will face great difficulty surviving the strict scrutiny test, while the content-neutral law may fare better when measured against the intermediate scrutiny test.

 

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References

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641 (1994).

Vagueness and Overbreadth Doctrines

Challenges to the constitutionality of a particular law may result from the fact that, as written, it punishes or discourages constitutionally protected speech (this notion is often called a chilling effect). The problem here stems from how the law is drafted—that is, how the law appears on its face. Once again, it is easiest to understand these doctrines through examples.

Vagueness Doctrine

It may seem like common sense to think that people should be able to read a law and immediately know what speech is prohibited and what speech is allowed. Alas, that is not always the case. Fortunately, the First Amendment requires such clarity, and laws that do not measure up are declared void for vagueness. The vagueness doctrine is based, in part, on the notion of due process—that people should have the proper notice that their speech is violating the law. Let’s suppose that Penn State creates a regulation that says, “Students may not use offensive language during class.” The problem with such a rule is that the term “offensive" has many different meanings.” Moreover, it is subjective: What is offensive to you might not be offensive to me, and vice versa. Most importantly, a student reading this regulation would not be able to discern from the rule what language can be used during class and what is prohibited. In such instances, the laws or regulations are struck down as unconstitutional on vagueness grounds.

Overbreadth Doctrine

Sometimes the drafters of a law want to prohibit a particular type of speech, but the words used in the law reach far beyond the intended targeted expression. In situations where the law proscribes a particular form of expression but sweeps in a substantial amount of protected speech as well, the law will be struck down on overbreadth grounds. Here’s an example: Congress wants to stop the distribution of pornography over the Internet, so it passes a law that prohibits “sexually explicit expression” on the Internet. Set aside for the moment that the law would be virtually (no pun intended) impossible to enforce. Clearly, pornography would be considered “sexually explicit expression,” so in that sense the law would reach its intended target. Nevertheless, it would also sweep up a substantial amount of other speech on the Internet—speech that is fully protected by the First Amendment, such as communication on medical websites, literature, and sex education materials, just to name a few.

Vagueness and overbreadth may be raised as facial challenges. That means the party making the challenge in court may not be raising the claim for personal interests, but instead may be asking the court to strike down the law entirely because of a general or broad application that could adversely affect others. This is a deviation from the ordinary rule that an individual must have standing to sue-in other words, ordinarily, the plaintiff must be directly affected by the law. Courts are more willing to entertain facial challenges when First Amendment interests are at stake.

Prohibited Categories of Speech

Throughout history, courts have found certain categories of speech to be without First Amendment protection or with very limited First Amendment protection. In such instances, it is not necessary to apply any of the tests or doctrines discussed above because such speech is outside the ambit of constitutional expression. Some examples include incitement to violence and true threats, defamation (see Lesson 3), obscenity, and child pornography (see Lesson 7).

Spatial Speech Issues

In some instances, the issues relating to expression focus more on where the speech takes place than what is actually said. The law over time and tradition has developed the public forum doctrine. The rationale behind the public forum doctrine is quite simple: Citizens need a space for public discussion. We cannot introduce ideas into the marketplace if there is no marketplace in which to introduce them. In 1939, Justice Owen Roberts crystallized this point, writing the following:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such  use of the streets and public places has, from ancient times, been part of the privileges, immunities, rights, and liberties of citizens (Hague, 1939).

When government attempts to regulate speech in a traditional public forum, it must do so in a content-neutral fashion. Here's an example of how this works: When the District of Columbia adopted an ordinance that prohibited displaying signs critical of a foreign government within 500 feet of its embassy, the U.S. Supreme Court struck it down as unconstitutional. After all, this type of protest was on a sidewalk—a traditional public forum—and the regulation was clearly content-based (aimed at speech critical of the foreign government). The Supreme Court, however, upheld the portion of the ordinance that allowed police to disperse protesters in that same locale if there was a threat to security. This latter rationale is unrelated to the content of the speech. Parsed differently, it is content neutral and, thus, a permissible restriction on speech.

 

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References

Hague v. CIO, 307 U.S. 496, 515 (1939).

Special Case: The Speech Rights of Minors

The free-speech rights of minors pose an interesting dilemma for the courts. On the one hand, minors do enjoy protections under the First Amendment. On the other hand, because youngsters are still developing physically and emotionally and are learning how to make their way in society, courts often find it necessary to restrict some of those rights in order to instill societal values in minors or to keep them away from inappropriate influences. The clearest example of this approach is balancing students' free-speech rights with educators' abilities to maintain a positive and productive learning environment in schools.

There is no shortage of speech-related issues in the nation's elementary, middle, and high schools. Students can be punished for messages on their T-shirts, belt buckles, charity bracelets, and hats. They can be reprimanded for what they post on Facebook, Twitter, blogs, and websites. They can be disciplined for things they say in school, in locker rooms, in the cafeteria, the schoolyard, and on the bus. Increasingly, they can be punished for things they say and write off-campus, on their own time, and on their own computers or mobile devices. In short, they can be punished for their speech and other forms of expression.

How does the First Amendment apply to school speech? At the outset, we should mention that we are talking about public schools—not private ones. To invoke a First Amendment challenge in court, the student (or in most cases, the legal guardian) must demonstrate a sufficient connection of the school to government (recall that the First Amendment includes the phrase "Congress shall make no law," which was later incorporated in the states and their subdivisions. If the student is in public school, that's a sufficient connection. And if that student wants to challenge the school's sanctions on First Amendment grounds, that individual may do so in federal court because the lawsuit raises a federal question (see Lesson 1).

While speech issues play out regularly across the country's schools, the U.S. Supreme Court has provided comparatively little guidance to local school districts as to just how much freedom students have to express themselves in an unfettered fashion. We do know from the Supreme Court that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," (Bethel, 675, 682, 1986) but the precise delineation of the protection enjoyed by minors can be debated.

In a nearly 40-year span, the Supreme Court decided only four cases that provide any type of standard or test that helps determine the scope of First Amendment protection for students in the nation's public schools. The quartet of cases is discussed briefly here. You should also visit the synopsis page for each case to gain a further understanding of the Supreme Court's reasoning.

Click each case to learn more.

 

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References

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).

Hazelwood v. Kuhlmeier, 484 U.S. 260, 273 (1988).

Morse v. Frederick, 551 U.S. 393, 422 (2007).

Morse v. Frederick, 551 U.S. 411 (2007).

Morse v Frederick, 551 U.S. 416 (2007).

Violent Video Games

Sometimes the government finds it necessary to keep speech products away from minors for what is considered their own good. In 1968, for example, the U.S. Supreme Court ruled that it was permissible for a state to ban the sale of sexually explicit materials to juveniles, even though that very same material could legally be sold to adults. More recently, a number of states throughout the country attempted to enact a similar prohibition with respect to violent video games. They were not successful. Although the Entertainment Software Association reports that parents are present when video games are rented or purchased 90% of the time, lawmakers felt it was necessary to restrict minors' access to violent games.

Leaving aside the political reasons for legislating in the area, let's examine the legal problems the government faced in trying to get such a law to pass constitutional muster—something that eluded it in every single case on the issue, including the final one in 2011 before the United States Supreme Court.

Applying what you've learned so far in this lesson, it should be easy to figure out that any law that restricts minors' access to violent video games is a content-specific law. The government is attempting to curb a particular type of expression (violent content), and therefore the appropriate legal test for a court to apply is strict scrutiny.

Recall that the strict scrutiny test puts the burden on the government to demonstrate

• a compelling governmental interest and that,
• the government is using the least restrictive means to achieve that interest.

For the government to show a compelling interest, it must demonstrate a vital need for the restriction. That is where the cases against video games fell apart in every instance. The courts hearing these cases said that to show a compelling interest, the government would need to show proof that a minor playing a violent video game would be harmed. Stated differently, there would have to be a causal connection between a minor playing the game and then behaving violently in society. So far, no social scientific study has been able to prove that connection; the best that social scientists can show is correlation.

We hear more about this concern just about every time there is a mass shooting in this country. Often when police look into the background of the shooter, they find that the shooter had played violent video games. But that doesn't prove a causal connection. At most, it is a correlation. After all, the shooter might have regularly drunk a certain type of cola, but that doesn't mean the soda caused the violent outbursts. The courts have been remarkably clear and consistent that only a proven causal connection will satisfy the compelling interest prong of the test.

Violent video game laws suffered from other constitutional defects, and the vagueness doctrine figures principally among them. One of the other problems the government faced in restricting minors' access to violent video games was adequately defining just what constitutes a violent video game. Remember, the vagueness doctrine requires that the law be clear enough that people of ordinary intelligence should be able to read the language of the law and understand what speech (or in this case, what type of content) is being prohibited. As lawmakers grappled with this issue, they often failed to meet this test. As one state's bill defined it, the violence had to be "especially cruel and heinous” (Cal. Code). Those terms were further defined as “shockingly atrocious.” However, these definitions are too vague. Consider these questions: If you sold video games in your store, would you be able to determine which games were “especially cruel and heinous,” defined as “shockingly atrocious” (Cal. Code) in terms of violence? Would you know which ones you couldn’t sell to minors in order to avoid criminal prosecution?

 

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References

Cal. Code § 1746-1746.5

Lesson 2 Flash Cards