Constitutional Law - First Amendment

The First Amendment, applicable to the states through the Fourteenth Amendment, requires the government to not interfere with the freedom of speech.

The government is limited in how it regulates speech. Speech regulation must not be 1) prior restraint, 2) overbroad, 3) vague or 4) unfettered discretion.

A prior restraint regulates speech in advance of expression. Prior restraints are generally presumed unconstitutional, except when 1) particular harm can be avoided, and 2) procedural safeguards are provided to the speaker, including narrowly drawn, reasonable and definite standards.

The collateral bar rule prevents individuals from challenging a court order if they disobey the order before appealing the order through appropriate proceedings. Courts preserve their abilities to direct the methods for challenging judicial orders to ensure that individuals do not become the judges in their own cases.

A law is overbroad when it prohibits protected and unprotected speech, regulating substantially more speech than necessary.

A law is void for vagueness if it gives no reasonable notice as to what specific speech is protected.

A law that gives regulating officials unfettered discretion is void on its face. A regulation must define standards as to how to apply the law to prevent unfettered discretion over speech.

If the government regulates speech content, the regulation is subject to strict scrutiny. Content neutral speech regulations are subject to intermediate scrutiny.

Under strict scrutiny, the government may regulate speech content if the regulation is 1) necessary and the least restrictive means to achieve 2) a compelling state interest.

Content neutral speech regulations are subject to intermediate scrutiny and upheld if the government shows 1) law is substantially related to an 2) important government interest.

The government's ability to regulate time, place and manner of speech varies with the forum in which the speech takes place.

A public forum may be traditional or designated. Traditional public forums are historically associated with expression. A designated public forum is not historically used for speech activities, but the government opens for such use. To be valid, government speech regulation in public forums must be 1) content neutral, 2) substantially related to an important government interest, and 3) leave open alternative communication channels.

A nonpublic forum is all public property that is not a traditional or designated public forum. The government may regulate speech activities in nonpublic forums as long as the regulation is 1) viewpoint neutral and 2) rationally related to a legitimate government interest. Viewpoint neutral means the government may prohibit speech on certain issues altogether, but not allow only one side of an issue to be presented.

There is no First Amendment right to free speech in a completely private forum, except when the private forum serves a public function.

When public property is not a forum, content neutral speech regulations are subject to intermediate scrutiny and upheld if the government shows 1) law is substantially related to an 2) important government interest.