Essay approach – freedom of speech (constitutional law)

Freedom of speech is a common essay topic (and often appears on the MBE). It really pays off to know it well. Here’s a step-by-step guide on how to navigate a freedom of speech question.

  1. STANDING. Discuss injury in fact, causation and redressability.
  2. STATE ACTION. Discuss the regulation the state has put in place.
  3. FREEDOM OF SPEECH. Explain the freedom and state how it is applicable (including symbolic acts). 1st Amendment applies to federal government acts and 1st Amendment (through 14th Amendment) applies to state government acts.
    • If applicable:
      • Discuss OVERBREADTH of regulation
      • Discuss VAGUENESS of regulation
        • Test: not allowed unless specific procedural safeguards in place: (1) narrowly drawn, reasonable and definite regulations, (2) prompt seeking of injunction and (3) prompt review of regulation
        • Normally strict scrutiny applies: “necessary to achieve a compelling government interest and narrowly tailored”
        • If it also includes a time/place/manner regulation:
          • Public forum (historically open to speech): still strict scrutiny
          • Designated public forum (open to speech activities on a permanent or limited basis): still strict scrutiny
          • Limited and nonpublic forums (areas for specific speech activity or areas not open to speech): allowed if viewpoint neutral
      • Discuss CONTENT-NEUTRAL REGULATIONS (i.e. blanket bans on speech)
        • Intermediate scrutiny applies – “substantially related to an important government interest”
        • If it also includes a time/place/manner regulation:
          • Public forum/designated public forum (historically open to speech on a permanent/limited basis): must be (1) content neutral, (2) narrowly tailored to serve a significant government interest and (3) leave open alternative channels of communication
          • Limited public/Nonpublic forum (areas for specific speech activity/not open to speech): must be (1) viewpoint neutral and (2) reasonable related to a legitimate government interest
        • COMMERCIAL SPEECH: protected unless false, misleading or unlawful. Regulations – valid if (1) substantial government interest, (2) the regulation must directly advance that interest, (3) regulation must be narrowly tailored.
        • OBSCENITY: not protected. Test (“POV”): (1) Appeals to the prurient interest in sex using a community standard, (2) Patently offensive based on community standards, (3) Lacks serious value (literary, artistic, political or scientific) using a national reasonable person standard.
        • INCITEMENT OF ILLEGAL ACTIVITY: not protected if the speech (1) creates a substantial likelihood of imminent illegal activity and (2) is directed to causing imminent illegality
        • FIGHTING WORDS: not protected if the speech involves (1) personally abusive words that are (2) likely to incite physical retaliation in an average person.
        • SYMBOLIC SPEECH: the government can regulate symbolic conduct if it has (1) an important interest in the regulation which is (2) independent of the speech aspects of the conduct and (3) the incidental burden on speech is no greater than necessary. E.g. prohibition on burning draft cards.
          1. Official duty exception: government employer may punish a public employee’s speech whenever (1) the speech is made on the job and (2) pursuant to the employee’s official duties, even if the speech is on a matter of public concern
          2. Other speech: If speech is not made pursuant to an employee’s official duties, two tests are used.
            • If the speech does not involve a matter of public concern, the courts give the government worker a (1) wide degree of deference and (2) allow punishment if the speech was disruptive of the work environment
            • If the speech involved a matter of public concern, courts must balance (1) the employee’s rights as a citizen to comment and (2) the government’s interest as an employer in the efficient performance of public service.

I hope this helps! Let me know what you think.

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