FREEDOM OF EXPRESSION

• Commercial speech: Speech that is “commercial” gets First Amendment protection. But this protection is more limited than protection given to non-commercial speech:
  • Truthful speech: Content-based restrictions on truthful commercial speech get only mid-level review: the government must be: (1) directly advancing (2) a substantial governmental interest (3) in a way that is reasonably tailored to achieve the government’s objective. (This compares with strict scrutiny of content-based restrictions on non-commercial speech.)
  • False, deceptive or illegal: False or deceptive commercial speech, or speech proposing an illegal transaction, may be forbidden by the government.
• Freedom of association: First Amendment case law recognizes the concept of “freedom of association.“ If an individual has a First Amendment right to engage in a particular expressive activity, then a group has a “freedom of association” right to engage in that same activity as a group.
  • Illegal membership: The freedom of association means that mere membership in a group or association may not be made illegal. Membership may only be made part of an offense if: (1) the group is actively engaged in unlawful activity, or incites others to imminent lawless actions; and (2) the individual knows of the group’s illegal activity, and specifically intends to further the group’s illegal goals.
  • Denial of public benefit or job: The government may not deny a public benefit or job based on a person’s protected associations. If a person’s activities with a group could not be made illegal, then those activities may generally not be made the basis for denying the person the government job or benefit.
  • Loyalty oath: Similarly, the government may generally not require a job applicant to sign a loyalty oath, unless the things the applicant is promising not to do are things which, if he did them, would be grounds for punishing or denying him the job.

I.GENERAL THEMES

A. Text of First Amendment: The First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

1. Related rights: There are thus several distinct rights which may be grouped under the category “freedom of expression”: freedom of speech, of the press, of assembly, and of petition. Additionally, there is a well-recognized “freedom of association” which, although it is not specifically mentioned, is derived from individuals’ rights of speech and assembly.

B. Two broad classes: When government “abridges” freedom of speech, its reasons for doing so can be placed into two broad classes. The first is that the government is restricting the speech because of its content, that is, because of the ideas or information contained in it, or because of its general subject matter. The second reason for abridgment has nothing to do with the content of the speech; rather, the government seeks to avoid some evil unconnected with the speech’s content, but the government’s regulation has the incidental by-product of interfering with particular communications.