[This isn't legal advice. Don't try using this as legal advice.... Really, that's just foolish in all kinds of ways. You'll miss something (from this or another area of law) and it'll blow up in your face. I won't be there to contain or redirect the explosion.]
On your own yes, with an attorney, it's possible. It is, however, fact intensive. You're looking at full discovery process with depositions, interrogatories ("rogs"), requests for documents, etc. It also depends what you plead in the complaint as it is actually far wider than "A. Defamation." The following is an incredibly oversimplified outline. Each subpart has subparts of its own that literally fills a legal encyclopedia volume or two. Understatement, it's complex. I can do it, but it's a pain, and like all litigation, a gamble:
That's just a sloppy waste of taxpayer's time for writing the law. It's also a waste of a judge's time to slap the crap out of it and kill it as the unconstitutional thing it is....
A person should only be allowed to be a member of a legislature if they know what the crap the law is. Either they should have to be a lawyer or have a damn good one they have to run anything by before they say something stupid like
(It will die as a content based restriction or be still born...). I'm getting rather sick of having people who waste time trying to make laws that have 0 chance of being constitutional. We have very serious problems and this crap just wastes time we can't afford to blow.... You should know something about law before you make it. You should also know something about baking before you make cookies, or at least you should if you expect me to try them....
The Amendment:
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. ~ U.S. CONST. amend. I
“…the freedom of speech…” Five Step Analytical Process of Government Regulation on Free Speech:
1.) Is the regulation content-based or content-neutral?
2.) If content-based, does the regulation restrict speech or compel speech?
3.) If content-restrictive, is the regulation direct or indirect?
4.) Does the regulation have characteristics of overbreadth, vagueness, or prior restraint?
5.) Does the regulation pertain to one of the settings for which the Supreme Court has created special rules?
1.) Is the regulation content-based or content-neutral?
When the government regulates speech, it does so in one of two ways — restricting:
A.) expressive content ; or
B.) the time, place, or manner of its expression.
Judicial hostility to the former is much greater than to the latterAccordingly, the best way to begin any Speech Clause analysis is to determine whether you are looking at a content-based or a content-neutral restriction. The answer to that question will dictate one of two divergent tests. In Laurence Tribe’s famous formulation, they are:
a.) Track One analysis (strict scrutiny for content-based restrictions); or
b.) Track Two analysis (intermediate scrutiny for content-neutral time, place, and manner restrictions).
Track One Analysis
The regulation must be necessary, and narrowly drawn, to serve a compel-ling governmental interest.
"Track Two" Review
1. The regulation must be content-neutral — i.e., it must be justified by the government without reference to the content of the regulated speech.
2. It must be narrowly tailored to serve a significant governmental interest — but this requirement is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.
3. And it must leave open ample alternative channels for communicating the information.
What To Look for in Applying Track Two
Prong #1: Content Neutrality
How does the government justify its regulation? What is the aim or purpose of the regulation?
Prong #2: Narrow Tailoring
Look for substantial restrictions on valued speech methods like marching, demonstrating, leafleting, picketing.
Prong #3: Alternative Channels
Does the regulation largely impair the speaker’s capacity to reach her intend-ed audience? (Key: Speaker’s desired location)
Prong #2 Analysis
Absent a broad-based ban on a traditional form of expressive activity, courts routinely uphold time, place, and manner restrictions as satisfying the requirement of narrow tailoring.
Regulations that FAIL the “narrowly tailored” requirement invariably feature broad restraints on expressive activity — imposing, for example, sweeping prohibitions on parades, demonstrations, residential picketing, door-to-door leafleting, or public handbilling.
Prong #3 Analysis
In real-world litigation, a speech regulation will be deemed to offend the “ample alternative channels” requirement only if it largely
impairs a speaker’s capacity to reach her intended audience.
How do courts determine content-neutrality? (GAUGING CONTENT-NEUTRALITY):
The principal inquiry in determining content-neutrality is whether the government has “adopted a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The controlling factor is the government’s purpose or intent. Ward, 491 U.S. at 791. “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791.
Government regulation of expressive activity is content-neutral so long as it is “‘justified without reference to the content of the regulated speech.’” Ward, 491 U.S. at 791-92 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
Employing these standards, courts have held that the following speech restrictions — even though they imposed a greater hardship upon particular speakers or messages — were nonetheless content-neutral…
A noise regulation limiting the decibel level at Central Park concerts — even though the restriction proved especially burdensome for rock musicians — where the government’s stated purpose was to preserve the quietude of adjacent property. Ward v. Rock Against Racism, 491 U.S. 781 (1989). A National Park Service ban on camping in Lafayette Park and the Mall — even though its enforcement against homeless advocates prevented them from sleeping overnight in “tent cities” near the White House — where
the ban’s underlying purpose was to maintain Washington’s parks “in an attractive and intact condition.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296 (1984). These cases illustrate that speech restrictions will be deemed “content-neutral,” even if they impinge more severely on a particular speaker or message, so long as the government can justify its regulation as serving purposes that have nothing to do with the content of speech.
Closely related to this theme are two strands of precedent that directly implicate the question of content-neutrality:
1.the “secondary effects” doctrine; and
2.the O’Brien doctrine.
O’Brien Issue-Spotting Advice (O'Brien is a Supreme court case)
Question #1: Is the speaker engaging in NON-VERBAL expression? (If yes, go to Question #2.) (If no, it’s NOT an O’Brien situation.)
Question #2: Is the government trying to regulate the non-verbal CONDUCT? (If yes, it’s an O’Brien situation.) (If no, it’s NOT an O’Brien situation.)
If O’Brien DOES apply to our situation, then we turn to its four-prong test…
1. The regulation under challenge must be within the constitutional power of the government.
2. The regulation must further an important or substantial governmental interest.
3. The cited governmental interest must be unrelated to the suppression of free expression.
4. The incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest.
TWO: If content-based, does the regulation restrict speech or compel speech?
Compelled Speech: Compelled Revelation of Speaker Identity or Associational Membership
THREE: If content-restrictive, is the regulation direct or indirect?
When government restricts the CONTENT of speech, it acts in one of two ways…
1. DIRECTLY restricting expressive content by targeting particular topics or viewpoints; or
2. Restricting content INDIRECTLY by punishing a speaker for the turbulent reaction produced by her controversial message (the “hostile audience” cases).
Hostile Audience: The “hostile audience” cases hold that the expression of a controversial view-point may not be criminalized merely because it prompts a violent response amongst onlookers enraged by the ideas expressed.
Let’s turn now to the DIRECT regulation of expressive content
A. Low-Level Speech Categories
1. Completely Unprotected
a. Advocacy of Imminent
b. Lawless Action
c. Obscenity
d. Child Pornography
e. Fighting Words
f. True Threats
2. Less Than Fully Protected
a. Defamatory Statements
b. Commercial Speech
c. Lewd/Profane/Indecent
Advocacy of Imminent Lawless Action: THE BRANDENBURG TEST
Advocacy of illegal conduct may be criminalized only when it is DIRECTED to inciting or producing, and is LIKELY to incite or produce, IMMINENT lawless action.
Obscenity: The Miller Test for Obscenity
1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient interest in sex.
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
3. And whether the work, taken as a whole, lacks serious literary, artistic, political, and scientific value.
In a less-than-helpful elaboration of the first prong, the Supreme Court stressed that a “prurient” interest in sex is one that is “shameful or morbid” rather than “normal” and “healthy.” [The hell does that mean???] Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498-99 (1985).
The “patently offensive” requirement in prong two is gauged under local community standards, Smith v. United States, 431 U.S. 291, 302 (1977), but the “lacks serious … value” requirement in prong three is judged under a national, objective test, Pope v.
Illinois, 481 U.S. 497, 500-01 (1987).
Though the private possession of obscene material is protected from prosecution, Stanley v. Georgia, 394 U.S. 557, 565 (1969), the public exhibition of such material — even in a theater open only to consenting adults — is not, Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 57 (1973).
Likewise, there is no protection for…
— importing (United States v. 12 200-Foot Reels, 413 U.S. 123, 128 (1973)),
— transporting (United States v. Orito, 413 U.S. 139, 143 (1973)),
— or distributing (United States v. Reidel, 402 U.S. 351, 356 (1971))
…obscene materials, even if solely for private use (12 200-Foot Reels, 413 U.S. at 128).
[I'm skipping over anything that has to do with how the first amendment relates to child porn. I won't represent those people in court for any price. Screw it; I'll starve first.]
Fighting Words:
Our next “low-level” speech category, fighting words, permits the government to criminalize statements that constitute unambiguous invitations to brawl, specifically directed by one person to another.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), as limited by Cohen v. California, 403 U.S. 15 (1971).
True Threats:
A threat that “on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976).
Defamatory Statements
Times Malice: The statement must have been made with knowledge that it was false or with reckless disregard for its truth.
The “Times malice” standard extends not only to public OFFICIALS but also to public FIGURES. Curtis Publishing Co. v. Butts,
388 U.S. 130, 164 (1967).
What is the difference between a public OFFICIAL and a public FIGURE?
Public OFFICIALS are governmental actors. Public FIGURES are people who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967).
As for libel actions by purely PRIVATE figures, Times malice limits only the availability of PUNITIVE damages; compensatory damages may be awarded merely upon proof that the falsehood was published NEGLIGENTLY. Gertz v. Robert Welch, Inc.,
418 U.S. 323, 347 (1974).
Note, however, that where the plaintiff is a private figure who is suing a media defendant, and where the media speech regarding the plaintiff falls within the realm of public concern, the plaintiff bears the burden of proving not only the defendant’s negligence but ALSO that the speech was FALSE. Absent such proof, the plaintiff is not entitled to ANY damages. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
The Times malice standard has now been extended to other tortious statements, including… false light invasions of
privacy; and intentional infliction of emotional distress.
ANALYTICAL CHECKLIST FOR DEFAMATION CLAIMS
1. Is the statement actionable in the first place? Is it protected opinion or does it suggest the assertion of an objectively verifiable fact?
2. Is the plaintiff a public official, a public figure (all-purpose or limited-purpose), or a private figure?
3. The Times malice standard governs liability in suits brought by public officials and public figures.
4. In suits by private figures involving matters of “public interest,” a negligence standard governs the recovery of actual damages,
while Times malice must be proven in order to recover punitive damages.
5. When a private figure is defamed as to a matter of no public interest, the Times malice standard has no applicability whatsoever.
6. Note, finally, that where the plaintiff is a private figure who is suing a media defendant, and where the media speech regarding the plaintiff falls within the realm of public concern, the plaintiff bears the burden of proving not only the defendant’s negligence but ALSO that the speech was FALSE. Absent such proof, the plaintiff is not entitled to ANY damages. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
7. Except for paragraph 6 above, the foregoing principles are NOT confined to media defendants; they apply to media and on-media
defendants alike.
Commercial Speech: The Central Hudson test has four prongs…
1. Is the advertisement protected AT ALL by the First Amendment? This will depend on whether:
(a)it concerns LAWFUL activity; and
(b)it is NOT misleading.
2. Next, is the asserted governmental interest SUBSTANTIAL?
3. If the first two questions are answered “yes,” then inquire: Did the regulation of commercial speech DIRECTLY ADVANCE the asserted governmental interest?
4. If yes, then, finally, the last question is: Could the government interest be served by a more LIMITED restriction on the commercial speech? If so, the regulation is INVALID under the First Amendment.
Finer Points in Applying the Central Hudson Test:
The government bears the burden of identifying a substantial interest and justifying the challenged restriction. Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 183 (1999). In applying the third prong (“Does the regulation DIRECTLY ADVANCE the asserted governmental interest?”), remember that “[t]his burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Greater New Orleans Broadcasting Ass’n, Inc. v. United States,527 U.S. 173, 188 (1999).
The Supreme Court has relaxed its enforcement of the fourth prong (“Is the regulation more extensive than necessary to serve the asserted governmental interest?”): It no longer treats the fourth prong as a “least restrictive means” test. Board of Trustees of SUNY v. Fox, 492 U.S. 469, 480 (1989). As the Court recently observed, “The Government is not required to employ the least restrictive means conceivable, but it must demonstrate narrow tailoring of the challenged regulation to the asserted interest — ‘a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served.’” Greater New Orleans, 527 U.S. at 188 (quoting SUNY, 492 U.S. at 480).
FOUR: Does the regulation have characteristics of overbreadth, vagueness, or prior restraint?
Justifications for the Overbreadth Doctrine:
1. Concerns about the chilling effect of overbroad prohibitions on speech; and
2.A recognition that the broader the statute, the broader will be the discretion enjoyed by government officials to engage in
selective enforcement.
Important Procedural Aspects of the Overbreadth Doctrine:
1. Permits facial rather than as-applied challenges.
2. Relaxes the normal standing rules governing who may bring a constitutional challenge.
3. Is limited by the power of a court to save an overbroad statute through a “narrowing” construction.
4. Is limited by the requirement of “substantial” overbreadth...
The Supreme Court first imposed the requirement of “substantial” overbreadth in Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973). A statute will be deemed unconstitutionally overbroad only when, within the range of its potential applications, a substantial number entail protected expression. See Ferber, 458 U.S. at 771; Regan v. Time, Inc., 468 U.S. 641, 650-51 (1984).
(There's some Confusion in the Case Law About When To Apply the Overbreadth Doctrine)
RECAPPING HOW TO ANALYZE AN OVERBREADTH ISSUE
1. Check to determine whether the regulation seeks to restrict the CONTENT of speech.
2. If content-restrictive, is the regulation directed at an UNPROTECTED category of speech (e.g., fighting words or obscenity)?
3. Check the SCOPE of the regulation to see whether it restricts PROTECTED as well as unprotected expression.
4. Check to see if the regulation has ever been subjected to a NARROWING CONSTRUCTION.
5. Then be sure to apply the requirement of SUBSTANTIAL overbreadth.
6. If you find yourself confronted with a content-neutral time, place, or manner restriction, apply Track Two review, not overbreadth analysis.
Vagueness:
The Governing Standard: "A speech restriction is void for vagueness unless it gives a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
POLICY GROUNDS FOR THE VAGUENESS DOCTRINE
1. Vague laws can trap the innocent by failing to give them adequate NOTICE of what is prohibited.
2. Vague laws effectively delegate ENFORCEMENT DISCRETION to police officers, judges, and juries, freeing them to act on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
3. When directed at expressive activity, vague laws can inhibit the exercise of First Amendment freedoms. Vagueness can have the same EFFECT as overbreadth, prompting citizens to steer a wide path around the perceived prohibition.
AN EXAMPLE OF VAGUENESS: Smith v. Goguen,415 U.S. 566 (1974): Striking down — as void for vagueness — a flag misuse statute that criminalized publicly treating the American flag “contemptuously,” since the statute offered no basis for determining what sort of conduct fell within its prohibition, and thereby left police, courts, and juries free to enforce it under their own references for treatment of the flag.
DIFFERENCES BETWEEN OVERBREADTH AND VAGUENESS:
Vagueness is concerned with the LACK OF NOTICE that unclear statutes give to the citizenry — their failure to let people know what is prohibited.
Overbreadth is concerned with the IMPINGEMENT of PROTECTED expression that results from clumsy efforts to restrict unprotected or less-than-fully-protected speech.
THE DOCTRINE OF PRIOR RESTRAINT
In reaction to the now-vilified press licensing systems of the 16th and 17th centuries, the doctrine of prior restraint imposes severe limits on the power of government to regulate speech BEFORE it is uttered or published.
Prior restraints come in two flavors:
1.) Speech-restrictive INJUNCTIONS
2.) LICENSING systems that require a permit or fee as a prerequisite to engaging in expressive activity
Regarding the first type of prior restraint, speech-restrictive INJUNCTIONS, there are four key points to remember…
1. A flat, pre-publication gag order is presumptively unconstitutional.
2. Injunctions that impose time, place, or manner restrictions are subject to a heightened form of Track Two scrutiny, in which the “narrowly tailored” requirement is replaced with a “burden-no-more-speech-than-necessary” test [Madsen].
THE MADSEN TEST
1.The regulation must be content-neutral.
2.It must burden no more speech than necessary to serve a significant governmental interest.
3.And it must leave open ample alternative channels for communicating the information.
3. Speech-restrictive injunctions must not be granted ex parte, and their restraints must be limited to the narrowest possible scope.
4. Under the “collateral bar” rule, speech-restrictive injunctions must be obeyed — even if they are unconstitutional.
Speech Licensing Systems…
When it comes to this SECOND form of prior restraint, such licensing schemes will run afoul of the First Amendment if they fail to limit:
1.) the licensor’s DISCRETION
in issuing a permit or fee; or
2.) the TIME FRAME for issuing a license.
What is the First Amendment danger posed by speech licensing systems that vest public officials with unfettered discretion to grant or deny a permit? As the Supreme Court has observed, any scheme that vests arbitrary discretion in the licensing official “has the potential for becoming a MEANS of suppressing a particular point of view.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981) (emphasis added).
To survive constitutional scrutiny, what characteristics must a permit scheme possess? A permit scheme will survive constitutional scrutiny only if it employs content-neutral criteria, and only if it contains “narrowly drawn, reasonable, and definite standards for officials to follow.” Niemotko v. Maryland, 340 U.S. 268, 271 (1951). A permit scheme fails this test if it “‘involves appraisal of facts, the exercise of judgment, [or] the formation of an opinion’ by the licensing authority.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) (quoting Cantwell v. Connecticut, 310 U.S. 296, 305 (1940)).
Without such standards, “post hoc rationalizations by the licensing official and the use of shifting or illegitimate criteria are far too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavorable, expression.” City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758 (1989).
Under Freedman v. Maryland, 380 U.S. 51, 58-60 (1965), speech licensing systems must contain the following procedural safeguards…
1. Burden of proof is on the licensor to demonstrate that the applicant’s speech is unprotected expression. Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
2. There must be a specified and brief time frame in which the licensor must either issue the license or go to court to restrain the applicant’s expression.
3. The procedure must also assure a prompt and final judicial decision. Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
Park Use Permit Schemes:
The Supreme Court recently held that the “extraordinary procedural safeguards” required by Freedman v. Maryland, which were designed for motion picture censorship schemes, do NOT apply to municipal permit schemes governing expressive access to public parks. Thomas v. Chicago Park District, 534 U.S. 316 (2002). In sum, Thomas leaves the UNFETTERED DISCRETION prong of
prior restraint law in place, but makes the PROMPT JUDICIAL REVIEW prong of prior restraint law INAPPLICABLE to park use permit schemes. Thomas v. Chicago Park District, 534 U.S. 316 (2002).
Licensing Schemes that Fail to Limit the TIME FRAME for Issuing a Permit or Fee
Courts will treat as a species of unbridled discretion any failure by a licensing scheme to place limits on the TIME FRAME for issuing a permit.
A licensing scheme may run afoul of this requirement in one of two ways…
1. By failing to afford prompt processing of permit applications, through the imposition of a brief and specific time frame within which the licensor must grant or deny the permit application; or
2. By imposing advance registration requirements that build into the application process a lengthy delay before the licensee may speak.
FIVE: Does the regulation pertain to one of the settings for which the Supreme Court has created special rules?
THE PUBLIC FORUM DOCTRINE
Access to public property for speech-related activity is governed by the public forum doctrine.
Government-owned property has been divided into three categories for purposes of forum analysis…
1. TRADITIONAL Public Forum: Public streets, sidewalks, parks, and squares.
2. DESIGNATED Public Forum: Not created by governmental inaction; must be affirmatively dedicated —
e.g., student conference center.
3. NON-PUBLIC Forum: Military bases, federal workplaces — and any government property that is not a Traditional or Designated forum.
In forum analysis, the government’s power to impose speech restrictions depends on how the affected property is categorized; the level of judicial scrutiny hinges on whether the property is deemed a traditional, designated, or nonpublic forum. Krishna Consciousness, 505 U.S. at 678-79. Traditional public forums may be regulated only via content-neutral time, place, and manner restrictions… To survive judicial scrutiny, such restrictions must satisfy Track Two review… (Included earlier)
Governmental restrictions on the content of public forum speech are presumptively unconstitutional; they will be analyzed under Track One strict scrutiny… These same standards govern the second category — restrictions on speech in designated public forums…
Special Rules Governing DESIGNATED Public Forums
Though the government may limit access to certain speakers (e.g., student groups) or certain subjects (e.g., school board business), and though it need not keep such a forum open indefinitely, its restrictions must be applied evenhandedly to all similarly situated parties. Paulsen, 925 F.2d at 69.
Special Rules Governing NON-PUBLIC Forums
Judicial scrutiny is substantially relaxed, however, vis-à-vis the third category: restrictions on speech in non-public forums. Here, the government enjoys “maximum control over communicative behavior” because its role “is most analogous to that of a private owner.” The challenged regulation need only be reasonable, so long as it is not an effort “to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 46. The challenged regulation need only be reasonable, so long as it is not an effort “to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 46. Ultimately, the government’s decision to restrict access to a non-public forum “need only be reasonable; it need not be the most reasonable or the only reasonable limitation.” United States v. Kokinda, 479 U.S. 720, 730 (1990).
Speech Rights of Public Employees: The Connick-Pickering Test
1.) the employee spoke as a citizen on matters of public concern; and 2.) the interest of the employee as a citizen in commenting upon matters of public concern outweighs the interest of the State as an employer in promoting the efficiency of the public ervices it performs through its employees.
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006):
“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Restricted Environments: Prisons, Schools, and the Military: The Turner v. Safley Test
When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests. Turner v. Safley, 482 U.S. at 89.
The Turner v. Safley Factors
1.) whether there exists a “valid, rational connection” between the regulation and the governmental interest put forward to justify it;
2.) whether inmates are left with alternative means of exercising the right that the regulation restricts;
3.) whether accommodating the asserted right would have a significant “ripple effect” on fellow inmates or prison staff; and
4.) whether there is a ready alternative to the regulation that fully accommodates the asserted right at a de minimis cost to valid penological interests.
The Four Categories of Student Speech
1. Individual Political Expression: TINKER
2. Lewd or Vulgar Speech: BETHEL
3. School-Sponsored Speech: HAZELWOOD
4. Advocating or Celebrating Illegal Drug Use: MORSE
THE PRESS CLAUSE
1. The press enjoys no special power or privilege to gather information.
2. The press enjoys no greater right of access to government information or proceedings than that enjoyed by the general public.
3. The press enjoys no special immunity from governmental demands for information in its possession.
THE RELIGION CLAUSES of the First Amendment
In the text of the First Amendment, the Religion Clauses (Establishment and Free Exercise) are set forth BEFORE the Speech and Press Clauses... “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
U.S. CONST. amend. I (1791). Any factual scenario that features a government/religion nexus arguably implicates the Religion Clauses. If the scenario involves government aid to, or identification with, religion, the Establishment Clause may apply. If the scenario involves governmental interference with, or hindrance of, religion, the Free Exercise Clause may apply.
THE ESTABLISHMENT CLAUSE:
The Lemon Test (now outdated)
1. To survive an Establishment Clause challenge, the state action must have a secular purpose (the PURPOSE prong);
2. It must have a primary effect that neither advances nor inhibits religion (the EFFECT prong); and
3. It may not foster an excessive governmental entanglement with religion (the ENTANGLEMENT prong).
The Agostini Test
1. To survive an Establishment Clause challenge, the state action must have a secular purpose (the PURPOSE prong);
2. And it must have a primary effect that neither advances nor inhibits religion (the EFFECT prong).
Prong #1: The PURPOSE prong inquires whether the government ACTUALLY INTENDS to endorse religion.
Prong #2: The EFFECT prong asks whether the challenged practice in fact CONVEYS a MESSAGE of government endorsement of religion.
SOME FINER POINTS IN APPLYING THE AGOSTINI TEST:
In applying the “purpose” prong (Prong #1), look carefully at the circumstances under which the statute was enacted. See, e.g., Wallace v. Jaffree, 472 U.S. 38 (1985), where the sponsor of a moment-of-silence bill acknowledged that it was “an ‘effort to return voluntary prayer’ to the public schools.” On the other hand, remember when performing a purpose-prong analysis that a court need not take statements by legislators about their intent at face value — especially self-serving platitudes uttered
after a lawsuit has been filed. See, e.g., Ingebretsen, 88 F.3d at 279 (legislative history belied public statements by elected officials, who unpersuasively offered a secular purpose for school prayer statute).
MAKING SENSE OF THE ESTABLISHMENT CLAUSE CASES BY BREAKING THEM DOWN INTO THREE DISTINCT CATEGORIES
Taken as a whole, the Court’s Establishment Clause cases are very difficult to reconcile. But the task becomes easier if you break the cases down into three distinct lines of precedent. Reduced to the following three scenarios, the Court’s decisions (or at least the results in those cases) become more coherent…
1. Government aid to religious institutions (whether in the form of a subsidy or service).
2. Government identification with religion (often featuring religious symbols erected on, in, or near a government building).
3. Religious teachings or practices within a governmental ceremony or institution.
There are two things to remember about Category #1:
(a) The Court is increasingly willing to uphold such aid so long as it is available across the board, to secular and sectarian institutions alike.
(b) The Court’s analysis in this area is dominated by the so-called “private choice” theme, which first materialized in Mueller and then proved pivotal in Witters, Zobrest, and Zelman.
Zelman offered greater clarification on how “private choice” analysis fits into the PURPOSE/EFFECT rubric of the revised Lemon/Agostini test…
Zelman makes clear that the “private choice” theme applies specifically to application of the EFFECT prong in aid cases, and that the presence of true private choice will prevent a violation of the effect prong, even if the challenged government aid goes to a disproportionately high percentage of religious recipients.
As for Category #2 (government IDENTIFICATION with religion, often featuring religious symbols erected on, in, or near a government building), such displays are likely to survive judicial scrutiny only if they incorporate secular elements.
As for Category #3 (religious TEACHINGS or PRACTICES within a governmental ceremony or institution), this is where the Court is most hostile and most willing to find an Establishment Clause violation.
And once again, I have hit the 40,000 character limit on a post and I'm not even done! Free exercise clause, freedom of association, etc. Politicians should know the law before they try to change it....
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