University of Louisville - LAW 840 Chemerinsky Freedom of Speech outline Free Speech methodology Distinction between Content based and Content Neutral laws: i. Content Based regulation generally must meet Strict Scrutiny. 2 ways to find a law is content based:1. Subject matter restrict
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University of Louisville - LAW 840 Chemerinsky Freedom of Speech outline
- Free Speech methodology
- Distinction between Content based and Content Neutral laws:
i. Content Based regulation generally must meet Strict Scrutiny. 2 ways to find a law is content based:
1. Subject matter restriction – where application of the law depends on the topic of the message.
a. Ex: Chicago ordinance – no picketing unless labor protest. Not allowed on any other topic. Court said it was a subject matter restriction.
2. Viewpoint restriction – where application of the law depends on the ideology of the message.
a. Ex: DC – no demonstrations in front of embassies. Allowed if supportive but not if critical. Obviously a viewpoint restriction.
b. Generally – whether subject matter or viewpoint restriction, it must meet SS.
ii. Content Neutral laws only have to meet intermediate scrutiny.
1. Example: If a city prohibits ALL parades/demonstrations, it would only have to meet IS.
- Prior Restraints – judicial order or admin system that stops speech before it occurs. S. Ct. has said that there is a heavy burden on those who want to justify.
i. Court orders preventing speech must meet SS. Classic form: court to issue temp restraining order/prelim injunction prohibiting speech. Must meet SS.
1. Pentagon Papers case: injunction to stop PP. S. Ct. ruled against gov’t because it failed to meet burden required for prior restraint.
2. Collateral Bar Rule - Procedurally proper court orders must be complied with until they are vacated or overturned.
3. A person who violates a court order is precluded/enjoined from later challenging it. Can violate a statute or ordinance and then challenge, but NOT for court orders.
ii. Licensing/Permit systems – if gov’t requires these, the S. Ct. has said that the gov’t may require a license for speech but only if:
1. It has important reasons for the licensing, and
2. ONLY if there are clear criteria leaving almost no discretion to the licensing authority, and
3. There must be procedural safeguards to ensure prompt determination of license requests and judicial review of license denials.
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