Con Law II - Constitutional Law Outline First Amendment...

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Constitutional Law Outline First Amendment: Freedom of Expression 1) Introduction a) Several views as to why freedom of speech should be regarded as a fundamental right: i) Self-Governance (1) Free speech is crucial in a democracy – speech can influence a government and its policies; public officials held accountable through criticism this would apply only to political speech ii) Discovering Truth (1) Marketplace of ideas – truth emerges through the clash of ideas, otherwise, government determines truth iii) Advancing Autonomy (1) Speech is an essential aspect of personhood and autonomy – people define themselves through speech iv) Promoting Tolerance (1) Integral to tolerance 2) The Distinction Between Content-Based and Content Neutral Regulations On Speech a) The Court has frequently declared that the very core of the First Amendment is that the government cannot regulate speech based on its content i) Content-based regulations are presumptively invalid b) There are some categories of speech that are unprotected or less protected i) These categories, by definition, are content-based and are not subject to strict scrutiny unless content-based distinctions are made within these categories (1) This is the one exception to content-based regulations receiving strict scrutiny c) The Importance of the Distinction i) Turner Broadcasting System, Inc. v. FCC (p. 1054) (1) The Court found that a federal law (“Must Carry Provisions”) requiring cable companies to carry local broadcast stations was content-neutral because they were required to include all stations whatever their programming (a) The provisions impose burden and confer benefits without reference to the content of speech (i) The law burdened cable programmers and cable operators; those choosing what to air and those competing for limited air space (ii) The law privileged local broadcasters (2) It could be argued that this provision excepts certain kinds of speech from regulation because the government has deemed it especially valuable this is not acceptable under the 1 st Amendment (3) The Court then declared that the general rule is that content-based restrictions on speech must meet strict scrutiny, while content-neutral regulation only need meet intermediate scrutiny d) How is it Determined Whether a Law is Content-Based? i) In order for a law to be content-neutral, it must be both viewpoint-neutral and -1-
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subject matter neutral (1) Viewpoint neutral means that the government cannot regulate speech based on the ideology of the message (2) Subject matter neutral means that the government cannot regulate speech based on the topic of the speech ii) Boos v. Barry (p.1058) (1) The Court declared unconstitutional, a DC ordinance that prohibited the display of signs critical of a foreign government within 500 feet of that government’s embassy (a) This law, in its very terms, drew a distinction among speech based on the viewpoint expressed the restriction depends on whether the signs are critical of the foreign government or not one category has
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