CHAPTER 17 FREEDOM OF EXPRESSION 17.1 INTRODUCTION TO FREEDOM OF EXPRESSION First Amendment law is complex and chaotic. Our starting point is the text of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. By its terms, the rule is absolute: ‘‘Congress shall make no law . abridging the free- dom of speech.’’ But it has never been interpreted that way by the full Court, although from time to time some justices have advocated an absolutist approach. The Court recognizes that Congress and the states (after the First Amendment protections were made applicable to the states through incorporation via the Due Process Clause of the Fourteenth Amendment) can limit freedom of expression in various ways, including by implementing reasonable time, place, and manner restrictions and by treating some types of expression as less protected than others. The default rule is that all speech is protected, subject to certain limited exceptions for certain types of speech. The term ‘‘speech’’ is interpreted to include any means of expression, including oral, written, graphic, audio-visual, music, dance, and so on. If the government wants to regulate the content of protected speech (most speech is protected), its regulation must pass strict scrutiny. As stated by the Court: Content-based laws–those that target speech based on its communicative content– are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Reed v. Town of Gilbert, 576 U.S. , (2015). This use of ‘‘narrowly tailored’’ appears to mean that the regulations chosen by the government restrict freedom of expression intheleastpossiblewayavailableto meet the government’s interest. See United States v. Alvarez, 567 U.S. (2012). Freedom of expression strict scrutiny is a difficult standard to meet, and few attempts to regulate the content of protected speech succeed. In Reed v. Town of Gilbert (2015), content-based regulation is explained this way: Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. The commonsense meaning of the phrase ‘‘content based’’ requires a court to 897 898 Chapter 17: Freedom of Expression consider whether a regulation of speech ‘‘on its face’’ draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. Reed v. Town of Gilbert, 576 U.S. (2015). Justice Thomas, who wrote the majority opinion in Reed v. Town of Gilbert, continued: Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be ‘‘‘justified without reference to the content of the regulated speech,’’’ or that were adopted by the government ‘‘because of disagreement with the message [the speech] conveys,’’ Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Those laws, like those that are content based on their face, must also satisfy strict scrutiny. Id. at ___. If the government merely wishes to regulate the time, place, and manner of the speech (as opposed to regulating what can be said, or as the Court describes it, the content of the speech), a lesser standard of review is used. That standard is a species of intermediate scrutiny and is generally expressed in some variant of the following: 1. The government must show that a substantial, content neutral interest is being served; 2. The regulation must be narrowly tailored to achieve that interest; and 3. There must be ample alternative avenues of expression. At times the third element is not relevant because the problem is one of the restric- tions on the particular activity as opposed to the existence of alternatives. For example, merely limiting parades to certain streets on weekends does not really implicate the third element in a strong way. At other times it seems the third element is the most important one. The use of ‘‘narrowly tailored’’ for both strict scrutiny and intermediate scrutiny is confusing since it does not mean the same thing in both settings. In time, place, and manner settings, the means chosen by the government do not need to be the least restrictive or least intrusive on freedom of expression. For time, place, and manner regulation, the regulation need only be a good fit, or as stated by the court, the requirement of narrow tailoring is satisfied ‘‘so long as the . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’’ Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989), quoting United States v. Albertini, 472 U.S. 675, 689 (1985). In addition to the strict scrutiny standard of review for content regulation and intermediate review for time, place, and manner restrictions, other doctrines have been developed to corral government regulations targeting expression. Two of them 17.2 Analyzing a Freedom of Expression Problem 899 are that a regulation can be deemed unconstitutional as void for vagueness or as overly broad. A government regulation is too vague when either (1) the boundaries of the speech it limits cannot be determined clearly or (2) the regulation leaves too much discretion to the officers or administrators applying it. A government regulation is overly broad when it limits not only the lawfully targeted unprotected speech, but also impermissibly limits protected speech. Underlying both of these doctrines is the foundational freedom of expression principle that regulations that might chill pro- tected speech are strongly disfavored. Not all speech is fully protected. Many types of speech receive lesser protection than standard protected speech. If the speech falls into one or more of the lesser protected or unprotected categories, the standard of review that applies is different. Various standards of review are used used depending upon the type of speech at issue. The standards of review for these other categories are less difficult to meet than the strict scrutiny applied to protected speech. As with protected speech, a regulation of unprotected or lesser-pro- tected speech may also be unconstitutional because it is too vague or overly broad. This chapter first provides a brief framework for analyzing freedom of expression problems before moving on to address the regulation of various types of speech. Most speech is fully protected, and the first section after the framework for analysis addresses constitutional constraints on the regulation of fully protected speech. The chapter then explores the treatment of types of speech that are either not protected or are less pro- tected. It concludes by examining a few more specialized matters, such as prior restraint, governmental speech, and speech in primary and secondary public schools. 17.2 ANALYZING A FREEDOM OF EXPRESSION PROBLEM When analyzing a freedom of expression problem, generally the first step is to determine the category of speech into which the speech in the problem falls. Once the category is determined, the standard of review to apply is mostly set. Most speech is fully protected speech. The following categories have been identified by the Court as being either nonprotected speech or lesser-protected speech: Obscenity Child pornography (textual works are treated differently from pictorial or audiovisual works) Defamation Fighting words Incitement to violence True threats Commercial speech. Speech categories receiving special treatment in some situations but that are gen- erally fully protected as to content include: Pornography (but avenues of dissemination can be restricted under the secondary effects theory) 900 Chapter 17: Freedom of Expression Expressive conduct (such as dancing or wearing armbands) Hate speech (generally fully protected, but can be used to enhance penalties for conduct that would otherwise constitute a crime regardless of the hate speech aspect). Each category of speech has a particular standard of review and other tests that apply. In general, truly unprotected speech can be regulated (and even banned) if the rational basis standard of review is met, while the various types of lesser protected speech can be regulated provided the government regulation passes the standard of review for that type of speech. Sometimes the most important aspect of a freedom of expression problem is not the standard of review, but rather the legal test for determining which category the speech falls into. The most famous of these legal tests is the Miller v. California, 413 U.S. 15 (1973), test for distinguishing unprotected obscenity from protected pornography. Obscenity is not protected speech, and so regulation of it is subject to a highly defer- ential rational basis standard of review. Under this deferential, low standard, almost any regulation will be approved. Consequently, the most important freedom of expres- sion inquiry in obscenity cases relates not to the application of the standard of review, but rather to the test to determine whether the speech is obscene. One must determine not only the proper category of speech at issue, but also other aspects of the regulation, including whether the regulation targets content or time, place, and manner; whether the regulation is unconstitutionally vague or overly broad; whether the regulation works a prior restraint on the speech (censorship); and more. Furthermore, the medium being used by the speaker can affect the scope of regulation allowed; it sometimes matters whether the expression is on the Internet, in a film, on broadcast television, or in some other medium.