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Free speech methodology (Content neutral law (Examples (City of Renton v.…
Free speech methodology
Content based law: a law on its face draws distinctions based on message and is regulated by its function or purpose
Strict scrutiny
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Examples
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Williams-Yulee v. Florida Bar: law restricting judicial candidates from asking for donations personally held up to SS, there was a CI and it was NT
Must be:
Viewpoint neutral
Boos v. Barry: a law that didn't allow signs outside an embassy with negative words about that government was content based, viewpoint neutral, and did not hold up to SS
Subject matter neutral
Carey v. Brown: city prohibited picketing in residential neighborhoods unless it was connected to labor, court held that whenever the government attempts to regulate speech in public places it must be subject matter neutral
Simon & Schuster v. NY State Crime Victims Board: law that forbade criminals from making money publishing about their crimes was not narrowly tailored
Content neutral law
Test: substantial government interest that does not unreasonably limit alternative avenues of communication
Strict scrutiny if the laws cannot be justified without reference to the content of the regulated speech or were adopted because of a disagreement with the message (Reed v. Town of Gilbert)
Examples
City of Renton v. Playtime Theaters: law prohibiting adult theaters near certain places was okay because time/manner/place regulations are content neutral
Not always followed because the secondary affects of a law does not per se make a law not content based
Nat. Endowment for the Arts v. Finley: a law requiring grant applications to have general standards of decency is okay because decisions about competitive funding are always subjective
Communicative conduct: there is intent to convey a specific message and there is a substantial likelihood that the message would be understood by those receiving it
Examples
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US v. O'Brien: a law prohibiting destroying a selective service form is constitutional because (1) it furthers an important or substantial government interest, (2) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest
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O'Brien test: whether the government has sufficient justification for regulating the conduct (less strict than SS)
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