Remedies and the First Amendment

1
Remedies and the First Amendment

• Enjoining Statutes and Avoiding Court Orders that
  Violate the First Amendment

2
Speech

• Any form of printed or oral communication

• And symbolic speech
• Examples

3
Two Aspects

• A statute (or other enactment) that violates the
  First Amendment can be enjoined either by a claim
  or as a defense.

• Common law claims (especially defamation) are
  subject to the 1st Am.
• Orders (to pay or injunctions) constitute state
  action
• Injunctions also may be prior restraints

4
When to Grant Prelim Injunction (13)

• (1) P must show it is ________ to prevail on
  merits
• (2) P must show _________ harm
• The loss of 1st Amendment rights, even for a
  __________ time unquestionably constitutes
  _____________ (4)
• (3) Balance irreparable harm to ______
• (4) Take into account ________ interest.

5
Content v. Conduct Regulation

• Non-content neutral
• Presumptively unconstitutional
• Regulation must be (1) ____________ to a
  __________ state interest and (2) be _________
  drawn to meet that interest.

• Content neutral and only time, place manner
• More likely constitutional
• Standard varies depending on what type of forum
  regulated (see below).

6
Not Content Neutral? Not Likely Constitutional!

• Why was Marilyn Manson not content neutral?
• Watch for unfettered discretion!
• Narrow Exceptions to Unconstitutionality
• Fighting words
• Inciting clear present danger
• Obscenity
• False or dangerous ads
• Invalid
• Valid
• Defamatory speech can be punished (later)

7
Content Neutral Regulation More Public, Less
Govt Power (14)

• Public forum a place that has ______ been used
  to publicly assemble, discuss public questions
  and communicate.
• Examples
• Test Govt may enforce _______ time, place, and
  manner restrictions if they are _______-neutral,
  they are _________ tailored to serve a __________
  government interest, and they leave open ________
  alternative channels of ________
• Limited or designated public forum created
  where govt _______ opens public property that
  wasnt a traditional PF for ______ activity.
• Examples
• Test Same as public forum when factility is open

• Nonpublic forum a _______ owned place that is
  not by ______ or ______ for public communication.
• Examples
• Test Regulation must be _____ neutral and must
  be ______ related to the ________ of the forum.
• All forms of communication _____ be banned, so
  long as ban is _______ and _______-neutral.
• Private forum
• Examples
• Test Government cant make a private landowner
  let public in.

8
Ritell Content Neutral or Not? (3)

• Facts?
• ________ forum.
• What was challenged regulation?
• Prelim/perm injunction sought?
• Why isnt P required to prove hes entitled to a
  permanent injunction (i.e., to prove his claim?)
• Instead, P seeking temporary injunctive relief
  must show it is _______ to succeed on the merits.

• P sought 2 injunctions
• Negative injunctive relief sought
• Mandatory injunctive relief sought
• Mandatory relief is _____ difficult to obtain.
• The loss of 1st Amendment rights, even for a
  _______ time unquestionably constitutes ________.

9
Ritell Likelihood Success (Cont)

• Was the regulation content neutral, or not? Why?
• Govt may enforce _______ time, place, and manner
  restrictions if they are _______-neutral, they
  are _________ tailored to serve a __________
  government interest, and they leave open ________
  alternative channels of ________.

• What is states interest in regulation?
• Why is it narrowly drawn it bans all signs!?
• What channels of communication remain open?

10
Marilyn Manson (11)

• Facts?
• What was reg?
• Nonpublic forum
• Was reg content neutral?
• Was it reasonably related to the purpose of the
  forum?
• Limited PF
• Content regulation, so ____ scrutinty applies.
• Public forum?

• Irreparable harm to P?
• Is music speech
• Why no irreparable harm to D?
• Public interest served by allowing MM to play?!?

11
Defamation and 1st Amendment

• What standards govern money damages?
• When, if ever, is Injunctive Relief Proper?

12
Money Damages

• Common law (1) of defamatory language (2) of
  or concerning the plaintiff (3) published
  through the defendant to a third person and (4)
  damage to the reputation (or per se)
• Constitutional defamation if the claim is by a
  public figure or official or arises out of a
  statement of public interest, the plaintiff must
  also show (4) __________ and (5) ______
• How much fault?
• Public figure/official
• Private figure

13
Matters of public concern

• Whats it mean?

14
Whos a PO, LPF, or PF?

• Is every government employee a PO for purposes of
  constitutional defamation?
• Who is?
• Why less protection?

• Is every actor, actress, singer, and so on a PF?
• Who is?
• Why less protection?
• Whats an LPF?
• (1)
• (2)
• (3)
• Why less protection?

15
Mazur (24)

• Facts?
• Claim?
• Private, LPF, or public figure? Why?
• Private or public matter? Why?

• Why was the March 20 letter per se defamatory?
• Why not the April 3?

16
Prior Restraints

• Extremely difficult to uphold over 1st Am.
• Examples upheld

• Defamation
• General rule equity will ______ ____ a libel.
• Exceptions?

17
Georgias Rule

• Retail Credit
• What claim?
• What result at trial?
• What type of injunction granted?
• What scope?

• Cohen (21)
• Facts
• Claim
• Public/private P?
• Public/private matter?
• What type of injunction granted?
• What scope?
• Proper or not?

Georgias Rule___________________________________
_________
18
Why Other Courts Disagree

• Why do an apparent majority of courts refuse to
  enjoin future statements of even the specific
  words found by a jury to have been defamatory?
• California
• Illinois

19
Compelled Speech

• Will courts enter mandatory injunctions requiring
  publishers to make certain statements?

• Why?