FREEDOM OF EXPRESSION

• Neutral “time, place and manner”: If a regulation is content-neutral, then the fact that the speech does or does not take place in a public forum makes a difference. Usually, we’re talking about “time, place and manner” restrictions here.
  • Non-public forum: When expression takes place in a non-public forum, the regulation merely has to be rationally related to some legitimate governmental objective, as long as equally effective alternative channels are available.
  • Public forum: But where the expression takes place in a public forum, the regulation has to be narrowly drawn to achieve a significant governmental interest (roughly intermediate-level review). It is still necessary (but not sufficient) that the government leaves alternative channels available.
• What are public forums: “True” public forums are: (1) streets; (2) sidewalks; and (3) parks. Also, places in which a public government meeting takes place are probably true public forums.
  • Designated-public: There are also “designated-public” forums. These are locations where the government has decided to open the place to particular open-expression purposes. The rules are essentially those for true public forums, except that government may at any time decide to close the forum.
  • Non-public forums: Other public places are “non-public forums.” Here, government regulation merely has to be rationally related to some legitimate governmental objective, as long as alternative channels are left open. (Examples: Airport terminals, jails, military bases, courthouses, schools used after hours, and governmental office buildings.)

• Access to private property: In general, a speaker does not have any First Amendment right of access to another person’s private property to deliver his message. Thus there is no First Amendment right to speak in a private shopping center.
• Defamation: The First Amendment places limits on the extent to which a plaintiff may recover tort damages for defamation.
  • Plaintiff as public official or public figure: Where P is a public official or public figure, he may only win a defamation suit against D for a statement relating to P’s official conduct if P can prove that D’s statement was made with either “knowledge that it was false” or “reckless disregard” of whether it was true or false.

• Obscenity: Expression that is “obscene” is simply unprotected by the First Amendment. For a work to be “obscene,” all three parts of the following test must be met:
  • Prurient interest: First, the average person, applying today’s community standards, must find that the work as a whole appeals to the “prurient” (i.e., sexual) interest;
  • Sexual conduct: Second, the work must describe or depict in a “patently offensive way” particular types of sexual conduct defined by state law; and
  • Lacks value: Finally, the work taken as a whole must lack “serious literary, artistic, political or scientific value.”

Note: But the mere private possession of obscene material by an adult may notbe made criminal.