Lee v Tam Legal Primer First Amendment primer

Lee v. Tam Legal Primer

First Amendment primer n Assuming that the law applies to speech: q Is the law “content-based”? n q If the law applies to speech about “Topic X” or does it have “Characteristic X”, whoever applies the law must make a contentbased determination about the speech. Is the law “viewpoint-based”? n Does the law treat some speech differently than other speech because of the viewpoint on the topic or characteristic being expressed?

First Amendment primer n If the law suppresses or burdens speech because of content - “strict scrutiny” applies n Government must show a ”compelling interest” in regulating and must have “narrowly tailored” the rule to be the least speech-restrictive alternative available

First Amendment primer n Permissible types of content-based laws: q q q Government speech – the government can choose not to say something based on its content because the government is a speaker not a regulator of others’ speech Government subsidies – Similarly, the government can choose who’s speech to promote with public benefits, subject to certain constraints n Cannot be viewpoint based n Cannot impose “unconstitutional conditions” that coerce speakers who want access to government benefits Commercial speech - E. g. speech that proposes a sale or transaction (advertising, labeling) n Then “intermediate scrutiny” applies. Government interest must be “important” and the choice of regulation must be “substantially related” to furthering that interest.