CBA Record November-December 2023

by a content-based statute since future government officials may wield such laws to suppress disfavored speech.” Laws that restrain protected speech are scrutinized to protect free expression and must be jus tified without reference to the content of the speech (i.e., content neutral). In Police Department of Chicago v. Mosley, 408 US 92 (1972), an ordinance prohibiting picketing near a school when school was in session was held uncon stitutional for making an impermissible distinction between labor picketing and other peaceful picketing, thereby violat ing the Equal Protection Clause of the Fourteenth Amendment. Above all else, the Court stated, the First Amendment means the government has no power to restrict expression because of its message, ideas, subject matter, or content. Although government restriction of speech based on content is highly sus pect, certain restrictions have been upheld (e.g., time and place), if narrowly tailored to advance an important governmental interest. In Ward v. Rock Against Racism , 491 US 781, 785 (1989), the Court sus tained sound and noise regulations in a city park because the restrictions were a valid and reasonable regulation of the place and manner of expression, content neutral, and narrowly tailored to serve the legitimate public interest of protecting cit izens from unwelcome noise. “[E]ven in a public forum the government may impose reasonable restrictions on time, place, or manner of protected speech, provided the restrictions are justified without refer ence to the content…”. In applying strict scrutiny based on the content, the govern ment has the burden of proving there are no effective means of accomplishing its goals except by restraining speech in the way the challenged law prescribes. Laws that are content-neutral on their face may still be unconstitutional if in design or operation they favor a particu lar point of view. S orrell v. IMS Health, 564 US 552 (2011). A content-neutral law may be upheld if found to further an important governmental interest and it does not present restrictions greater than those necessary to further the inter est. Turner Broadcasting v. FCC, 512 US

622 (1984). Turner upheld the require ment that cable providers transmit local broadcast television stations because the law was content neutral, not designed to favor or disadvantage content, and pre sented no danger to free expression. Courts evaluating the constitutionality of government restraint on speech may consider the question of vagueness. The vagueness doctrine is based on due pro cess. Laws that are vague are unconstitu tional due to the uncertainty of the scope and prohibitions and the resulting chill ing effect vagueness has on speech. Chal lenges of vagueness may be viewed along with claims that the law is overly broad.

Amendment’s protections of speech and expression does not extend to threats of physical violence, R.A.V. v. St. Paul , 505 US 377 at 388 (1992). Addressing dangerous speech as a cate gory of speech that is not protected by the First Amendment, case law has evolved toward a flexible “clear and present danger test” to decide whether restrictions on speech are permissible. In Dennis v. U.S., 341 US 494 (1951), the Court quoted the lower court in asking, “whether the gravity of the evil, discounted by the improbability, justifies such invasion of free speech as is necessary to avoid danger.” Dennis quotes Justice Holmes in

Strict scrutiny becomes involved, requir ing the law restricting speech to be as nar rowly tailored as possible to accomplish the government interest. If the language is too vague for understanding and interpre tation, the law will fail. US v. Stevens, 559 US 460 (2010) (law prohibiting animal cruelty was substantially overbroad and invalid because depiction of animal cruelty was not, as a class, unprotected speech, and the prohibitions included lawful as well as unlawful actions). Dangerous or Hate Speech Where parties of differing views seek to silence opposing views, the crucial inquiry is, what speech is not protected? Is the implicated speech defamatory, obscene, fraudulent? Does it incite violence or aid in the commission of a crime? The First

Schenck v. US, 249 US 597 (1919): “The question in every First Amendment case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to protect.” And more recently, “Speech cannot be restricted simply because it is upsetting or arouses contempt, at least when speech occurred in a public place on a matter of public concern.” Snyder v. Phelps, 562 US 443, 458 (2011). In Beauharnais v. Illinois , 343 US 250 (1952), the Supreme Court upheld a state group libel law making it unlaw ful to defame a group of people. Here petitioner distributed pamphlets portray ing Black citizens as depraved, criminal, and lacking in virtue. The Court said that CBA RECORD 21