Statue of Justice, Prague, Czech Republic (Wikimedia Commons)
This is not a comprehensive list of doctrines, tests and terms, but it’s a start towards understanding some of the most important ones that apply to First Amendment and communications law.
State action doctrine
The First and Fifth Amendments apply to government action and people who are acting on behalf of a governmental body. The term “state” here is used generally, applying to all levels of government, to indicate that they are all subject to limitations found in the Bill of Rights. So when the First Amendment says “Congress shall make no law” concerning religion or speech, the principle applies to all government but does not generally apply to non-state actors.
Example: If a social media platform bans (de-platforms) a person for violating their terms of service, they are not performing a state action and the person usually cannot sue the company under the First Amendment. The most frequently cited case in de-platforming is Prager v YouTube 2020, in which the non-profit Prager institution sued YouTube (and its parent Google) for removing access to some of its videos in response to (what it said was) violations of its rules. YouTube is a private forum, the 9th circuit court found, and “not subject to judicial scrutiny under the First Amendment.” It is YouTube’s own editorial decisions that are protected by the First Amendment, and its editors have the right to manage the platform as they see fit, the court said.
Example: Two new Florida and Texas laws that assert a First Amendment right against de-platforming will be tested by the US Supreme Court, which granted certiorari for Moody v Netchoice in May 2023 for the cases.
Example: A social media account may be part of a government official’s communication with the public. Two cases in the Supreme Court in 2023 are testing the limits of free speech the public forum doctrine under those circumstances.
Fourteenth Amendment
This is one of the three “Reconstruction Amendments” that followed the US Civil War, and it extends the state action doctrine from the national level to the states. The amendment passed in 1868 and meant that states could not censor or suppress speech. However, in practice, the First Amendment and other guarantees of civil rights were not “incorporated” until the 20th century.
Example: States were free to make their own laws about what citizens could say, circumventing the First Amendment, until it was incorporated in the 1925 Gitlow v New York case.
Prior restraint
Prior restraint is a form of censorship in which a government reviews the content of materials and then prevents their publication. (Section 4 of this web / textbook is devoted to prior restraint issues). In the US, the UK and other common law nations, this is one of the least tolerable government actions for speech, press or other expressive activity.
Example: In Near v Minnesota, 1931, the state of Minnesota banned an irresponsibly published newspaper. The Supreme Court said that shutting down Near’s “Saturday Press” was an unconstitutional prior restraint. The newspaper could be sued for libel or other issues, but only after irresponsible articles were published. Justice Charles Evans Hughes said:
…the fact that liberty of press may be abused does not make any less necessary the immunity of the press from prior restraint … a more serious evil would result if officials could determine which stories can be published .
Example: When a secret history of the Vietnam war called the “Pentagon Papers” was leaked to major newspapers in 1971, the US Dept. of Justice asked the courts to enjoin (order) them from publishing. In the landmark decision, New York Times v US, the Supreme Court sided with the newspapers. Justice Hugo Black said:
The press was (protected in the Constitution) to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
Compelled speech doctrine
The government can violate the First Amendment when it compels certain kinds of speech. The best example is the flag salute cases from the 1940s. In the case Minersville School District v. Gobitis (1940) the Supreme Court ruled that states could require public school students to salute the U.S. flag and recite the pledge of allegiance without violating students’ First Amendment rights. The law even allowed parents to be fined or jailed for up to 30 days. The students here were members of the religious group Jehovah’s Witnesses. But as World War II broke out, and the example of the Nazis forcing everyone to yell ‘Heil Hitler’ sank in, the judges started thinking they made a mistake.
Three years later the court overturned Gobites in West Virginia State Board of Education v. Barnette (1943) Here the court said that schools could not require students to salute the flag and say the pledge did infringe on their First Amendment rights. In the court’s formal opinion, Justice Robert H. Jackson said:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion[,] or force citizens to confess by word their faith therein.
Content Discrimination
When courts review laws that curtail constitutional rights such as free speech, one of the first issues is the level of scrutiny (examination) that should be applied. If the law addresses specific content, then courts will use (1) a strict scrutiny standard. If the law addresses content-neutral material, then (2) an intermediate scrutiny standard is applied. If the subject involves routine regulation, then (3) a rational basis review may be used.
Let’s take a closer look at these three standards under the Content Discrimination Doctrine:
- Strict scrutiny is applied to content or viewpoint discrimination
Strict scrutiny is high-level a test for the constitutionality of laws that directly restrict content or viewpoints. For example, a local ordinance that prevented fraternities or sororities from posting Greek letters on their houses would be a specific content restriction and would be subject to strict scrutiny review by the courts.
Strict scrutiny tests to see if a) it is necessary; b) it advances a compelling government interest; c) and it is the least restrictive means for achieving the end, or in other words, it harms First Amendment rights as little as possible to achieve the end.
“For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law’s enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty… ” (Cornell University has an excellent article on Strict Scrutiny.)
Examples of things are never protected by First Amendment include child pornography, true threats, and incitements to imminent lawless or violent action.
Controls over speech by specific groups of people or over specific ideas may not pass strict scrutiny, eg crush videos (US v Stevens) or selective content-specific sign ordinances (Reed v Town of Gilbert, 2015).
2. Intermediate scrutiny is applied to content neutral materials
(1) Is restriction within the constitutional power of government? (2) Does restriction further important or substantial governmental interest? (3) Is the governmental interest unrelated to the suppression of free expression? (4) Is the restriction narrowly tailored – no greater than necessary?(This from US v O’Brien test; also) 5) Does the restriction leave open ample opportunities for communication?
Time, place and manner restrictions are often used in situations where content-neutral restrictions make sense. Example: FCC v Pacifica (the 1978 George Carlin “safe harbor” decision) in which indecent content is only allowed on broadcast radio or TV after 10 pm; Also in Ward v. Rock against racism, loud concerts in New York’s Central Park could be controlled by city audio technicians and focused amplification to minimize disruption.
The Central Hudson test is a four part intermediate scrutiny test for appropriate regulation of advertising. The test asks: 1) is the product legal 2) is there a compelling government interest 3) does the regulation further the interest 4) is the regulation narrowly tailored? (See Central Hudson Gas & Electric v Public Utilities Commission of New York, 1980).
Note also: “Heightened scrutiny” also used for some types of cases involving supposedly content neutral regulation that affect people who have been historically disadvantaged. In NAACP v Alabama 1958, the Supreme Court protected the free association rights of a Black organization that was being targeted by the state of Alabama during the Civil Rights movement.
Rational basis review is the usual standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment. Courts applying this level of review are trying to determine whether a law is “rationally related” to a “legitimate” government interest.
FCC v. Beach Communications Inc. 1993, involving the FCC power to define what kinds of cable systems should be regulated.
Romer v Evans 1996, in which a Colorado law that protected discrimination against LGBTQ people was struck down by the US Supreme Court because there was no rational state interest in furthering discrimination against gay people.
Overbreadth, vagueness
In either a strict scrutiny or intermediate scrutiny test, sometimes the terms are not clear enough, and the law can be seen as reaching so deeply into Constitutional rights that no one knows what is punished and what is permitted. Uncertain laws can be selectively administered, and have at times been used to violate Constitutional rights. Therefore a good law is not overly broad. A good law is narrowly tailored to directly meet compelling interests.
Example: In US v Stevens, 2010, the Supreme Court said that a law banning videos depicting cruelty to animals was overly broad and should have been more narrowly tailored. Although the intent of the law was good, the way the law was written would have led to problems.
Forum analysis
When deciding if a restriction is narrowly tailored, courts consider the setting of the communication. The setting has two main divisions: a public forum and a non- public forum. In a public forum people have a right to express themselves. They do not have that right in a non-public forum. An example of a non-public forum would be a parade ground on a military base. A public forum might be a city park. In between these two positions is a “limited purpose public forum” such as a college campus where students and faculty have public forum rights but n0t visitors to the campus. Even if people have a right of free speech in a particular location, there may be reasonable time, place and manner restrictions. In the 1981 Heffron vs the International Society for Krishna, a religious group had the right to a booth in a fixed location at a state fair, but no right to distribute material elsewhere. This “time, place and manner” restriction is permissible so long as expression is possible in some manner; this is called the Hefron principle.
Clear and present danger test …
Early 20th century test for determining when speech is protected and when it is not, given in the Schenck v US case, 1919. The example was a person falsely shouting “fire” in a crowded theater, which could result in injuries or deaths. It was superseded by Brandenburg v Ohio imminent lawless action test.
… and the Imminent lawless action test
Inflammatory statements may pose a danger, but they are not enough to justify government suppression under the Brandenburg v. Ohio (1969) imminent lawless action standard. In that case, the Court overturned the conviction of KKK wizard Clarence Brandenburg under an Ohio law prohibiting advocacy of crime after he made inflammatory statements such as extracting “revengeance” on the government if it continued to discriminate against white people. In its decision, the US Supreme Court said that the government could only punish advocacy that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This is the controlling case today, that is, the current standard, for US or state government suppression of political speech.
Testing the First Amendment and Religion
First Amendment questions about religion may involve funding for religious schools or the use of religious icons in public parks or schools. The courts have operated under two conflicting legal theories — strict separation or “accomodationism,” which says that government should neither endorse nor hinder religion. A set of tests, especially the “Lemon test” ( Lemon v. Kurtzman 1971), can help decide whether the secular purposes of funding may be considered.
Common carrier doctrine
The idea that a “common carrier” can’t discriminate against types of customers goes back many centuries and is a foundation of common law. Originally, a ship or coach carrying goods for the public at large was forbidden to discriminate on the basis of (for example) a customer’s religion or politics. This was extended to the telegraph and railroads in the 1800s, and was generally applied to telephone and telegraph (but not radio and TV) under the Federal Communications Act of 1933.
Modern question: Does the doctrine apply to social / digital media today? Some say yes (“Big tech are common carriers“), some say probably not (Cato Institute) and some day definitely not (“How to regulate online platforms.”)
Note: Both common carrier and public accommodations approaches were suggested by Supreme Court Justice Clarance Thomas in his dissent in the social media regulation case Knight v Trump, 2017 and 2021.
Public accommodations doctrine
Public accommodations are legally defined as facilities, whether publicly or privately owned, that are used by the public, such as stores, restaurants, universities, and many other types of facilities. Laws against customer discrimination were extended during the civil rights movement.
Modern question: Does the doctrine apply to social / digital media today? Again, some say yes (“Apply public accommodation laws to big tech,“) some say maybe, at least, in the case of traditionally marginalized groups under the Americans with Disabilities Act (“Lawyers committee for civil rights“) and some say definitely not (“Public accommodation law wont work for social media“).
Burden of proof
Which side has to do the most to prove its case in a legal action? In a criminal case, innocence is assumed until guilt is proven by beyond a reasonable doubt, and the prosecution has the burden of proof. In a civil case, the standard is the preponderance of evidence (51% would win over 49%) and the plaintiff has the burden of proof. The exception involves constitutional cases involving freedom of press, freedom of speech or freedom of religion, where the burden falls heavily on anyone trying to curtail Constitutional rights. In these constitutional cases, strict and intermediate scrutiny tests are applied, depending on the content of the speech.