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First amendment Building blocks

Explore the key principles and landmark cases surrounding the protection and regulation of speech in the First Amendment, including viewpoint and content, strict scrutiny, intermediate scrutiny, prior restraint, unprotected categories, the heckler's veto, and the pernicious effects of chilling speech.

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First amendment Building blocks

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  1. First amendment Building blocks (FABBs)

  2. “Viewpoint” • Highly Protected • SCOTUS protects much “hate speech.” • Crush Videos Case (U.S. v. Stevens, 559 U.S. 460 (2010)) • Funeral Hecklers Case (Snyder v. Phelps, 562 U.S. 443 (2011)) • National Socialist Case (National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977)) • Religion is a “viewpoint.”—(Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015))

  3. “Content” • Also protected, but can be regulated by forum. • “Content” is not identical to viewpoint.

  4. “Strict scrutiny” • Standard of Review for Content Restrictions • “Narrowly Tailored” • “Compelling Governmental Interest” • “Least Restrictive Means”

  5. “Intermediate Scrutiny” For Time, Place and Manner 1.  Serve an important governmental interest?2.  Is the interest served by the regulation unrelated to content suppression?3.  Narrowly tailored?4.  Ample alternative means for communication?

  6. “Prior Restraint” • Disfavored Approach to Speech Regulation • Healy v. James, 408 U.S. 169 (1972)

  7. “Heckler’s Veto” • Discrimination based upon how the listeners will respond, not speaker’s intention.

  8. “unprotected categories” • True Threats • Elonis v. U.S., 135 S.Ct. 2001 (2015) • Virginia v. Black, 538 U.S. 343 (2003) • Fighting Words • Incitement to Imminent Lawlessness • Defamation • Harassment • Pornography

  9. “Chill” A pernicious effect of a regulation or practice that may limit speech, etc., without directly prohibiting it. • Sweezy v. New Hampshire, 354 U.S. 234 (1957)

  10. “Overbreadth”/”Vagueness” • Connected to “Narrowly Tailored” and “Chill” • SCOTUS also concerned about unfettered use of “judgment.” • Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969)

  11. “Time, place and Manner” • Reasonable restrictions are permissible under “intermediate scrutiny.” • Watch out for backdoor content/viewpoint regulation! • Will be tested/challenged in court.

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