This is my attempt to put together a comprehensive First Amendment's Freedom of Expression list of scrutiny standards:
These are the basic TYPES of regulations of speech:
1. Regulation of expressive CONDUCT: Intermediate scrutiny
2. Regulation of the MEANS (time/place/manner) of one's expression: Intermediate or Strict for public forums depending on content-neutrality; usually rational basis for non-public.
3. Regulation of the actual CONTENT (the subject matter or viewpoint): Strict, with some obvious exceptions like child porn and defamation.
4. Regulation of media: Strict; generally struck down unless the media is breaking the law or knowingly using information that broke the law.
5. Regulation of association: Strict. Don't join a terrorist organization.
Those are the four categories we have to worry about. So let's dive in:
1. Expressive CONDUCT (not actual speech). Test: Intermediate scrutiny. Ex: Flag burning versus burning draft cards.
Exact wording of test: (1) The government has an enacted power; (2) it's furthering an important government interest; the act is unrelated to suppression of ideas; and the burden is no greater than necessary to accomplish the goal.
Policy illustration, to help you remember: Why is conduct expressing a communicative idea subject to a lower standard that conduct regulating normal speech? Are they not fundamentally the same thing? NO! Conduct is more dangerous than just normal speech/writing, because conduct has a capacity to do physical damage to people and can economically disrupt society really easily. This is why it is NOT legal to burn your draft cards, but it IS legal to burn an American flag. Burning your draft card disables the military's ability to effectively implement a draft. That's bad. On the other hand, burning a flag does nothing to harm people; it doesn't really disrupt any government function at all. Similarly, burning a cross is going to be protected too, unless you are actually burning the cross in order to threaten a person (like back in the KKK terrorism days).
2. The MEANS (time/place/manner) are restricted. Test: It depends. Ex: No protests on the courthouse lawn at 8-8:30 am and 4:30-5 pm.
A.) The types: Public Forum, and Non-Public Forum.
Policy for public/non-public: T/P/M restrictions usually don't regulate the speech itself. These restrictions usually exist in order to ensure that your speech does not disrupt society. Accordingly, it makes sense that it should be harder to get away with regulating public arenas of speech. A park, for example, should have greater protection than a courthouse, which is open for functions beyond just allowing you to speak your mind.
B.) The breakdown for scrutiny standards of T/P/M:
Public Forum: CN = Intermediate, Not CN = Strict Scrutiny.] If you're in a public forum, two different standards exist. If the regulation isn't content neutral (it bans either a subject matter of debate, or it bans a particular view of debate), you're looking at straight up, vanilla Strict Scrutiny. The lesson here is, the government should never get embroiled in the actual discussion. If it's content-neutral -- if the government truly isn't regulating anyone's choice of subject matter or their views on that subject -- then it's intermediate scrutiny.
Non-public: Rational Basis. If you're in a non-public forum, the most common test is rational basis. The government may lawfully prohibit certain topics of discussion. In other words, the government can limit the SUBJECT MATTER you are discussing to certain topics, so long as it does not prohibit certain VIEWS or perspectives on the subject matters that are allowed. For example: It can ban you from talking about abortion in a public university classroom, but it can't force you to only espouse pro-choice views in a university classroom.
What's up with this designated and traditional public forum distinction? Doesn't this matter in our analysis? Not really. I used to think it did, but it really doesn't matter. The scrutiny standard never hinges on the type of public forum. All that matters is whether it's a public forum. You only apply this test if you're having trouble determining whether the forum is public or not. A school gymnasium, for example, isn't traditionally the place to talk air grievances against the mayor, but maybe the gym is converted once a month on the first Tuesday to a town hall meeting, in which case it becomes a public forum during that specific time window.
What about government employees? I thought I remember reading something about government employees in high-security positions not being allowed to espouse certain opinions? Is that true? YES! Obama gets to pick a Secretary of State who agrees with his foreign policy position. A senator gets to hire aides who self-identify with his political party. And even public school teachers may be required to take a very general oath to support the Constitution!
3.) Regulation of actual speech and writing (regulation related directly to the content): Strict scrutiny, always.... except for a few things you already know are banned for really obvious reasons:
Exact wording of test: Don't worry about this. It's strict scrutiny, period. Has to be narrowly tailored to further a compelling government interest, just like with racial discrimination under Equal Protection.
Policy illustration: Why is a lack of content-neutrality always going to trigger Strict Scrutiny? Because think about it: It's fucked up that the government could force you to say that you agree a political issue, or that it could force you not to say something, just because it wants you to.
The super obvious exceptions:
- Child porn. Really, needs no explanation.
- "Obscenity". Apply that dumb test: The speech (1) appeals to the purient interest, (2) is patently offensive, and (3) lacks serious literary, political, scientific or artistic value.
- Fighting words. No real test. Just remember, these always get struck down for vagueness and overbreadth, especially on your essay questions!
- Defamation. Derp, don't carelessly say bad shit about people. This shit affects the economic wellbeing of the people you talk about, so the gov is allowed to regulate it.
- Commercial speech. This is its own thing, explained directly below:
The Commercial Speech Exception: The only complicated exception. Write this shit down 15 times on your computer or write it out by hand: The test is, commercial activity (1) must concern lawful activity and can't be false or misleading; (2) the government is asserting a substantial interest; (3) the regulation directly advances asserted interest; and (4) regulation must be narrowly tailored.
Policy behind Commercial Speech: We don't want companies lying to consumers. But at the same time, we hate Europeans and their socialism, so we only moderate a little bit of commercial speech and will only rarely step in to protect consumers. We basically need fairly blatant misrepresentation, probably involving safety of a product's use or pricing of a product, to prevent fraud and physical injuries.
4. Regulation of the Media. Unnecessarily complicated and worth just skimming your outline to look it over. In short, the media are under the same standards as anyone else. If they are doing expressive conduct, then it's intermediate. If their stories are being suppressed or gagged, then it's strict scrutiny (clear and present danger, for example). The most important thing to remember about the media is, they do not have a privilege to break the law, and nor do they have a privilege to keep their sources in confidence if they know their source has broken the law.
5. Freedom of Association. Standard: Strict scrutiny, period. Ex: Basically, don't join a terrorist group, and you're probably safe under almost all circumstances.
Last edited by Tanicius
on Tue Jul 22, 2014 2:56 pm, edited 3 times in total.