THE FIRST AMENDMENT

FREEDOM OF SPEECH
Crystal Morgan Esq.
Licensed in California &
Federally in Colorado
[email protected]
 Learning Goals:
Review the relevant rules
Come from SC decisions
Won’t test unsettled law
How to spot in MBE & Essay
Threshold Issues in all Con Law Essays

6 - 7 ?s Almost every
1st Amend other exam

MBE Essay

1st Amend
◦ Crossed-Over with:
◦ Real Property (Eminent Domain)
Essay Writing
◦ Remedies (TRO & Injunctions)
◦ Some Civil & Criminal Procedure Step 1 – Identify Con Law area

◦ Step 1 – Commerce Clause, Establishment Clause, etc.… Step 2 – Threshold Issues

Step 3 – State the Test
◦ Step 2 – Threshold Mini-Outline & Other Possible Issues
Step 4 – Apply the Test
◦ Step 3 – State the test (R in IRAC)
◦ More of a paragraph – not one “R” per heading
◦ Step 4 – Apply the test (A in IRAC)
◦ Application must be reasonable, and should include a discussion
of the level of scrutiny that is applicable. This Pho
to
◦ Also: Can know SC case names but MUST know the tests by
Unknow
n Author

◦ Note: Professional Responsibility is tested 99% is

licensed
under
◦ The past 7 exams have not crossed over CC BY-S
A
 Threshold Issues
All Con Law Essays ◦ Case or Controversy
◦ Standing (Injury in Fact / Causation / Redressability)
◦ Federal Courts are Limited Jurisdiction ◦ Third Party ?
◦ Article III, section 2
◦ Ripe ?
◦ USC 1331 (admiralty & maritime) &
◦ No Advisory Opinions
1332
◦ Moot
◦ US party / State v State (or citizens
◦ Political Question
from State)
◦ Abstention
◦ Ambassadors & Consulates
◦ Adequate & Independent State Grounds

This Photo by Unknown Author is licensed under CC BY-SA-NC

Other Issues that May Arise
13, 14, & 15 Amendments
The Enforcement Powers
This Photo by Unknown Author is licensed under CC BY-SA-NC
◦ 13 – bans slavery
◦ 14 – prohibits States from violating Due 10th & 11th Amendment
Process, Equal Protection, & Privileges
and Immunities Clause ◦ Gives Power to the States
◦ Nearly all Bill of Rights are enforced
◦ Private citizen – no suits for $$ v States
against States through the 14th Amend
◦ Exception: State v State or Fed v State
◦ Not 5 (right to indictment) 7 (civil
jury) & 8 (excessive fines) ◦ Sovereign immunity ≠ city or county
◦ Injunctions are not $$
◦ 15 – prohibits States from discriminating
◦ State may Consent
w/respect to race in voting
◦ Suits under Enforcement Powers
◦ Fed v State to enforce
 Freedom of Expression
◦ The First Amendment provides “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.”
◦ The First Amendment was held applicable to the States through the Due Process Clause of
the 14th Amendment (most of them).
◦ Congress shall make not law & applicable to the States ≠ not private actors
◦ Strict Scrutiny
◦ State must show:
Levels of Scrutiny
◦ Compelling Gov’t Interest – Actual
interest
◦ Narrowly tailored – least restrictive
alternative
◦ Used for Fundamental Rights
(SCAMPERD)
◦ Sexual orientation, Contraceptives,
This Photo by Unknown Author is licensed under CC BY-ND
Abortion, Marriage, Possess
obscenity, Education, Relative, Death
◦ Used for Suspect Class (Equal
Protection) (race, illegal aliens – State)
Domestic travel, National origin, Voting
◦ Used for Establishment Clause violations
and Content-Based discrimination in
Free Speech
 Levels of Scrutiny Continued
• Rational Basis
• Plaintiff show that the law is not
Rationally related to a legitimate
Gov’t purpose
◦ Intermediate Scrutiny • Used for discrimination based upon:
◦ Gov’t show: Age, Alienage (Federal), Disability,
◦ Regulation being challenged – Sexual orientation, Wealth,
substantially related – Actual Economic Regulations for the
interest States, Other
◦ Used for discrimination based upon: • This includes unprotected
Gender, Illegitimacy, Undocumented speech – no SS review
alien children
What Speech is Not Protected?
Or not protected as much??
◦ Gov’t wins suit – passes SS
◦ Unprotected low-value speech
◦ HAF WOUD
◦ Hostile Audience, Fighting Words,
Obscenity, Unlawful advocacy,
Defamation
◦ Gov’t as speaker
◦ Content neutral conduct regulation
This Photo by Unknown Author is licensed under CC BY-SA
◦ Content neutral time regulation
◦ Time, Place, Manner regulation
Unprotected low-value speech – HAF WOUD
◦Hostile Audience
◦Immediate violent reaction
◦Police must protect speaker and settle
crowd
◦Fighting Words
◦Immediate violent reaction
◦Not vague, annoying, or offensive
◦Obscenity
◦3-part test: • Unlawful advocacy
◦Local community / average person – find • Immediate / imminent unlawful action
offensive • Advocates violence
◦Patently offensive description of sexual • Defamation
conduct
◦Lacks literary, artistic, political, or
scientific value (SLAP)
Quasi-Protected Speech
• Government as Speaker ◦ Commercial Speech (so long as truthful)
• Not private actor – do what they want ◦ 3-part test:
◦ Serves substaintail Gov’t interest
◦ Directly advances the interest
◦ Not more extensive as necessary
◦ Almost IS
◦ Cannot ban ads for: Prices of drugs & legal services.
• Sexual or Indecent Speech
• Indecent speech is protected – but the secondary
effects of such are not
• Example: Zoning of Adult Clubs
This Photo by Unknown Author is licensed under CC BY-SA
• Must leave open other means for speech
 Quasi-Protected Speech – But May Regulate
◦ Conduct Regulation • Time, Place, Manner
◦ Incidental burden on • Allowed to restrain the time,
speech allowed, if: place, and manner of speech in
◦ Furthers important Public areas
• 3-part test:
Gov’t interest unrelated
• Be content neutral
to the suppression of
• Narrowly tailored
Free Expression
• Leave open alternative
◦ Restriction on speech no channels for speech
greater than essential to • Can require a permit but may not
further interest discriminate
• Can provide a buffer zone or
uphold privacy (neighborhoods)
Other Free Speech Issues
Places
◦ Public Forum Doctrine
◦ Traditional areas that speech is allowed People This Photo by Unknown Author is licensed under CC BY-ND

◦ May limit speech on Gov’t property

◦ Lawyers must swear to uphold the
◦ Gov’t may deny employment if in a subvariant
Constitution
group (with illegal means and intent to further)
◦ Children do not have to say the pledge in
◦ Gov’t Town Rule school
◦ Public employee cannot disrupt the workplace ◦ Children’s speech may not disrupt the school
◦ Prior restraint – Gov’t may suppress prior to ◦ Prisoners speech may be regulated if related
publication (usually military papers) to rational objective
◦ Gag orders for Jurys – disfavored but ◦ Press – no greater freedoms
allowed - Same for motion pictures ◦ Same content-neutral regulations
Other Free Speech Issues - Continued
◦ Overbreadth
◦ Statutes cannot regulate more speech
than intended
◦ Regulation must be narrow and
specific
◦ Vagueness
◦ Cannot be “void for vagueness”
This Photo by Unknown Author is licensed under CC BY-ND
◦ Example: Illegal to treat the flag badly
– what is bad?
AutoCo is a privately owned corporation that manufactures automobiles. Ten years ago, AutoCo purchased a five-square-
mile parcel of unincorporated land in a remote region of the state and built a large automobile assembly plant on the land.
To attract workers to the remote location of the plant, AutoCo built apartment buildings and houses on the land and leased
them to its employees. AutoCo owns and operates a commercialdistrict with shops and streets open to the general public.
AutoCo named the area Oakwood and provides security, fire protection, and sanitation services for Oakwood’s residents.
AutoCo also built, operates, and fully funds the only school in the region, which it makes available free of charge to the
children of its employees.
A family recently moved to Oakwood. The father and mother work in AutoCo’s plant, rent an apartment from AutoCo, and
have enrolled their 10-year-old son in Oakwood’s school. Every morning, the students are required torecite the Pledge of
Allegiance while standing and saluting an American flag. With the approval of his parents, the son has politely but
insistently refused to recite the Pledge and salute the flag at the school on the grounds that doing so violates his own
political beliefs and the political beliefs of his family. As a result of his refusal to say the Pledge, the son has been expelled
from the school.
To protest the school’s actions, the father walked into the commercial district of Oakwood. While standing on a street
corner, he handed out leaflets that contained a short essay critical of the school’s Pledge of Allegiance policy. Some of the
passersby who took the leaflets dropped them to the ground. An AutoCo security guard saw the litter, told the father that
Oakwood’s anti-litter rule prohibits leaflet distribution that results in littering, and directed him to cease distribution of the
leaflets and leave the commercial district. When the father did not leave and continued to distribute the leaflets, the
security
guard called the state police, which sent officers who arrested the father for trespass.
1. Did the son’s expulsion from the school violate the First Amendment as applied through the 14th Amendment? Explain.
2. Did the father’s arrest violate the 1st Amendment as applied through the 14th Amendment? Explain.
I. Does the son have standing? (“I” IRAC)
◦ All standing Rule statements in one paragraph (“R” IRAC) from mini-outline
◦ Apply reasonably to facts (“A” IRAC) Write
◦ (“R” IRAC)
◦ Make Conclusion – The son has standing. (“C” IRAC) Step 1 – Identify Con Law area
II. Did the son’s expulsion from the school violate the First Amendment as applied
through the 14th Amendment? (“I” IRAC) Step 2 – Threshold Issues
◦ State the Test for School and Student (“R” IRAC) Step 3 – State the Test
◦ Apply reasonably to the Facts (“A” IRAC) Step 4 – Apply the Test
◦ Make Conclusion – The expulsion did violate the First Amend. (“C” IRAC)
III. Does the father have standing? (“I” IRAC)
◦ Supra standing as much as possible (“R” IRAC)
◦ Apply reasonably to facts (“A” IRAC) • Argue both sides
◦ Make Conclusion – The father has standing. (“C” IRAC) • Use Here / Therefore /
Because / Hence / On the other
IV. Did the father’s arrest violate the 1st Amendment as applied through the 14th
Amendment? (“I” IRAC) hand…
• If you need to state a reason for
◦ State the Test for Speech as Conduct w/Secondary Effects in a public forum
(“R” IRAC) the State’s action make a
◦ Apply reasonably to the Facts (“A” IRAC)
reasonable one up – safety,
education…
◦ Make Conclusion – The arrest did violate the First Amend. (“C” IRAC)
The Queen Mary is anchored in the harbor in Burbank, and is maintained with state funds. The dock at which the ship is
anchored is a popular tourist attraction. Although no one is permitted to board the ship, the state has opened a dockside
museum providing information about Queen Mary’s history as a warship. People were hired by the state to maintain the
ship on a daily basis.

The ship sails only once a year, on July 4, when a cruise around the harbor commemorates the holiday. VIPs take up 40
reserved spaces aboard ship, but the other 120 spaces are given out to the general public by lottery. Because the cruise is a
high profile event drawing spectators and media, some people who have gained spaces on the ship have taken to carrying
political signs promoting candidates or issues. In the interest of fire and public safety, the state has enacted legislation
prohibiting people from holding signs or distributing literature while on board the ship during the July celebration.

Seven members of a committee to reelect a local politician are picked by lottery to participate in the cruise, and they all
appear at the dock with signs promoting the politician’s candidacy. The committee members are prohibited from boarding
the ship with their signs. Subsequently, all seven of the committee members file suit in court challenging the
constitutionality of the statute.

The most likely outcome of the suit is that:

A) The committee members will prevail, because the statute prohibits protected symbolic speech.
B) The committee members will prevail, because the ship is a public forum.
C) The state will prevail, if there is a likelihood that the committee members will incite violence.
D) The state will prevail, because the state can limit activities on board the ship to those which are consonant with the
day’s events.
 Questions?
The First Amendment - Freedom of Speech

Crystal Morgan Esq.

Licensed in California and Federally in Colorado
[email protected]