Free speech: incitement, fighting words, forums, permit schemes, public employees, students, and press access

Black-letter propositions

1. 01

   A state may not forbid advocacy of the use of force or of law violation except where the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

2. 02

   Fighting words, meaning epithets likely to provoke the average person to retaliation and cause a breach of the peace, are unprotected, and a statute punishing face-to-face abusive words on a public street that tend to provoke violence may be upheld.

3. 03

   A content-neutral regulation of the time, place, or manner of speech in a public forum is valid if it is narrowly tailored to serve a significant government interest and leaves open ample alternative channels, and it need not be the least restrictive means.

4. 04

   On property that is not a traditional or designated public forum, the government may reserve it for its intended purposes if the regulation of speech is reasonable and does not suppress speech merely because officials oppose the speaker's view.

5. 05

   A permit scheme for a march or rally is invalid if it gives a government official overly broad licensing discretion, or if it sets fees without narrowly drawn, reasonable, and definite standards.

6. 06

   A public employee's speech as a citizen on a matter of public concern is balanced against the government's interest in the efficiency of its services, and a teacher's statements on a matter of public concern that do not interfere with his duties or school operation cannot be a basis for dismissal.

7. 07

   When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and the Constitution does not insulate the statements from employer discipline.

8. 08

   Students have First Amendment rights at school, and a school may not prohibit expression of opinion without evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, but schools have a special interest in regulating some off-campus speech, such as serious bullying, threats, or breaches of security.

9. 09

   The right of the public and press to attend criminal trials is guaranteed by the First and Fourteenth Amendments, so the trial must be open absent an overriding interest articulated in findings, but the press has no constitutional right of special access to prisons or information not available to the public generally.

10. 10

    A protective order limiting a party's dissemination of information obtained only through pretrial discovery does not offend the First Amendment when it serves an important interest and is no broader than necessary, because a litigant has no First Amendment right of access to information made available only for purposes of trying a lawsuit.

Use this attack sequence under time

Common wrong turns

• Advocacy of illegal action is protected unless it is directed to inciting imminent lawless action and is likely to produce it.
• A time, place, and manner rule need not use the least restrictive alternative.
• An employee speaking pursuant to official duties does not speak as a citizen.
• The press has no special right of access to information the public cannot get, but trials are presumptively open.

Worked example

A county ordinance lets its administrator set parade permit fees at any amount he decides, based on the expected cost of public order, with no written standards, and the administrator charges a group with unpopular views a much higher fee.

Practice this topic

Unprotected speech and content-neutral rules

Brandenburg v. Ohio held that the Constitution does not permit a state to forbid advocacy of the use of force or of law violation except where the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action, and overruled Whitney v. California. Chaplinsky v. New Hampshire upheld a conviction for calling another a damned Fascist and a damned racketeer on a public street, noticing that such epithets are likely to provoke the average person to retaliation and cause a breach of the peace.

Ward v. Rock Against Racism held that a city's sound-amplification guideline was a valid regulation of the place and manner of protected speech because it was content-neutral and narrowly tailored to serve significant governmental interests, and that the Court has rejected a less-restrictive-alternative analysis for time, place, or manner regulations. Perry Education Association v. Perry Local Educators' Association held that on public property that is not by tradition or government designation a forum for public communication the state may reserve it for its intended purposes if the regulation is reasonable and not an effort to suppress expression because officials oppose the speaker's view.

Forsyth County v. Nationalist Movement held a permit ordinance facially invalid because it left the fee to the unbridled discretion of the administrator without narrowly drawn, reasonable, and definite standards.

Public employees and students

Pickering v. Board of Education held that a teacher's interest as a citizen in commenting on public issues must be balanced against the State's interest in the efficiency of its employees' services, and that statements on matters of public concern that did not interfere with his teaching or school operation could not support dismissal. Garcetti v. Ceballos held that when public employees make statements pursuant to their official duties they are not speaking as citizens for First Amendment purposes and the Constitution does not insulate the communications from employer discipline.

Tinker v. Des Moines held that students wearing armbands were protected because their conduct was quiet and passive and the school had no evidence that a prohibition was necessary to avoid substantial interference with discipline or the rights of others. The Mahanoy Area School District case held that public schools may have a special interest in regulating some off-campus student speech but that the special interests the school offered did not overcome the student's interest in free expression there.

Press and access

Richmond Newspapers v. Virginia, in the plurality opinion, concluded that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments and that, absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. Pell v. Procunier held that a prison regulation barring press interviews with specific inmates did not violate the media's rights because the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.

Seattle Times v. Rhinehart held that a protective order limiting a party's ability to disseminate information discovered before trial did not offend the First Amendment, because judicial limitations on dissemination of information gained only through discovery implicate First Amendment rights of the restricted party to a far lesser extent than restraints in other contexts.

Frequently asked questions