Chemerinsky Freedom of Speech outline

Chemerinsky Freedom of Speech outline - A. Free Speech...

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A. Free Speech methodology a. Distinction between Content based and Content Neutral laws: i. Content Based regulation generally must meet Strict Scrutiny. 2 ways to find a law is content based: 1. Subject matter restriction – where application of the law depends on the topic of the message. a. Ex: Chicago ordinance – no picketing unless labor protest. Not allowed on any other topic. Court said it was a subject matter restriction. 2. Viewpoint restriction – where application of the law depends on the ideology of the message. a. Ex: DC – no demonstrations in front of embassies. Allowed if supportive but not if critical. Obviously a viewpoint restriction. b. Generally – whether subject matter or viewpoint restriction, it must meet SS. ii. Content Neutral laws only have to meet intermediate scrutiny. 1. Example: If a city prohibits ALL parades/demonstrations, it would only have to meet IS. b. Prior Restraints – judicial order or admin system that stops speech before it occurs. S. Ct. has said that there is a heavy burden on those who want to justify. i. Court orders preventing speech must meet SS. Classic form: court to issue temp restraining order/prelim injunction prohibiting speech. Must meet SS. 1. Pentagon Papers case : injunction to stop PP. S. Ct. ruled against gov’t because it failed to meet burden required for prior restraint. 2. Collateral Bar Rule - Procedurally proper court orders must be complied with until they are vacated or overturned. 3. A person who violates a court order is precluded/enjoined from later challenging it. Can violate a statute or ordinance and then challenge, but NOT for court orders. ii. Licensing/Permit systems – if gov’t requires these, the S. Ct. has said that the gov’t may require a license for speech but only if: 1. It has important reasons for the licensing, and 2. ONLY if there are clear criteria leaving almost no discretion to the licensing
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Chemerinsky Freedom of Speech outline - A. Free Speech...

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