This chapter is challenging for those students who want and expect the law to be clear, clean, determinate, and fixed. Some students also will begin to be troubled by the density of legal language, the need for clear sequential thinking, the myriad of tests and categories that are being introduced, and, essentially, the alien contours of legal thinking. Rather than view these issues as problematic, students’ unease with the uncertainty inherent in First Amendment interpretation and application may provide a highly useful pedagogical opportunity for critical thinking exercises.
The fundamentals of First Amendment theory and application introduced in this chapter are vital to active understanding of many of the topics to follow. Therefore, it is useful to spend time helping students to learn and distinguish among the various strategies used by the Court to interpret and apply the First Amendment.
This chapter first introduces students to what the First Amendment means based on different approaches to its interpretation, its history, and the values it protects. It then moves on to explore how radical and ongoing changes in both media and communication (all professional fields) challenge the application of established Supreme Court understandings of the First Amendment’s protection of speech and of “the press.” Despite these and other complexities, it is clear the First Amendment prohibits government censorship (prior restraint) of speech. Yet there are numerous ways in which laws do appear to restrain speech.
The Supreme Court has distinguished between laws based on the content of speech and laws that incidentally infringe upon speech as a basis for determining their constitutionality. It also has created hierarchy of protection it affords to different categories of speech. The Court’s 2015 decision in Reed v. Town of Gilbert may challenge these long-standing foundations of First Amendment jurisprudence.
The chapter then moves through a series of sections on political speech, which the Supreme Court has said lies at the pinnacle or core of First Amendment protections. Political campaigning, campaign finance, political speech by government employees, the government’s own ability to speak, and the right to speak anonymously round out this important section of rapidly shifting law.
The chapter looks at how the First Amendment protects speech on public property, which is held in trust by government for the public. On occasion, but rarely, private property make take on this public forum role as well. The compelled speech that occurs through slogans on government license plates and mandatory disclosure laws is explored in the final section.
Students may be encouraged to critically evaluate the operation of the tests and the basic assumptions of the Court that led to such a complicated, multifaceted system of interpretation and application of the First Amendment’s fundamental constitutional protections. For example, does this complex and seemingly ever-shifting set of strategies fulfill the objectives of the rule of law laid out in Chapter 1? When the Court balances interests, for example, is the scale skewed in one direction? How do the Court’s two decisions excerpted with this chapter clarify or muddy the parameters of First Amendment protections?
Recent Supreme Court decisions on public employee free speech and right to testify (Harris v. Quinn and Lane v. Franks), state bans on false political advertising (Susan B. Anthony List v. Driehaus) and content-based signage regulations (Reed v. Town of Gilbert) seem to suggest shifting contours to the right of government to control speech that provide an excellent locus for discussion of the often-difficult balancing of competing interests.
Many students are intrigued by the concept of government funding creating virtual public forums, particularly as the case law in this domain frequently has involved university campuses. The university cases afford the opportunity to move from abstractor detached conversations to situations that present direct challenges to the students’ own values and self-interest. Here is thevaluable chance to explore whether we, as individuals, really believe in freedom of speech or whether, as Nat Hentoff said so aptly,we believe in “free speech for me, but not for thee” (Nat Hentoff, Free Speech for Me, But Not for Thee,1992).
I. What the First Amendment Means
II. Where the First Amendment Came From
- Foundations of First Amendment Theory
III. Why We Value the First Amendment
IV. When “the Press” Changes
V. How Government Restrains First Amendment Freedoms
VI. How the Supreme Court Reviews Laws Affecting First Amendment Rights
- Content-Based Laws
- Content-Neutral Laws
VII. Speaking Politics
VIII. Speaking for and as the Government
IX. Political Campaigning and Financing Elections
X. Speaking Anonymously
XI. Assembling and Speaking in Public and Nonpublic Places
- Private Property as a Public Forum
- Virtual Forums and Government Speakers
XII. Requiring Speech