How do courts treat First Amendment cases?

Is a First Amendment right at stake or is it offered as a defense? Courts usually take the case quite seriously, as it involves a constitutional right.

Here are six ways judges have decided whether a First Amendment right is at stake:

• The categorical approach. Certain types of speech have been categorically excluded from protection by the courts, such as obscenity, child pornography, “fighting words” and incitement to violence. This is a simple method, but crude: expression falling into unprotected areas receives no protection (and protected expression receives full protection).

• The absolutist approach. No law means no law. Former Supreme Court justices Hugo Black and William O. Douglas were the most recent proponents of this approach.

• Ad hoc balancing. Later courts balanced, in each case, the government’s interest in regulating expression against the free speech rights of the person or group at issue. The problem is that this approach is very subjective and subject to judges’ political preferences and whims. More of a strategy than a theory.

• Weighted or preferred-position balancing. Instead of a case-by-case approach, the scales are weighted in favor of free expression. Presumes that government action limiting speech is unconstitutional, therefore government has burden of proof to show that censorship is justified because of other important values or constitutional protections.

• Meiklejohnian theory: Free speech is protected not as an end in itself but as a means to self-government, to the functioning of our democracy. Such speech is absolutely protected, while other expression not related to self-governing is not absolute. New York Times v. Sullivan (1964), written by Justice William Brennan, is based on this theory.

• Access theory: Jerome Barron at Georgetown argued in mid-60s that under 1st Amendment, people have right of access to mass media, particularly as media became more concentrated in the hands of conglomerates and wealthy broadcasters and publishers. Idea was shot down by Supreme Court in 1974 case, Miami Herald v. Tornillo, in which Chief Justice Burger held that under 1st Amendment, govt. had no right to force newspaper to publish views or ideas of citizens. But the court had no problem in applying access theory in Red Lion Broadcasting v FCC 5 years earlier in justifying regulation of broadcasting. Today, two seemingly opposite trends: increasing concentration of media but also increasing numbers of “new media.”

Content analysis.
An important distinction is made between regulations that are content-based (where the reason for the regulation is the content or message) and those that are content-neutral (where the regulation is not driven by the content). Content-based regulations are invalid unless they pass strict scrutiny.

• Strict scrutiny test: Government regulations that are content-based or otherwise directly restrict speech are sustained only if they pass the strict scrutiny test: Is the restriction necessary to achieve a compelling governmental interest, and is there no other means less destructive of First Amendment rights?

• Content-neutral laws are permissible if they survive intermediate scrutiny—that is, they are reasonable restrictions on the time, place or manner of expression. If a content-neutral law incidentally restricts expression, it is upheld if it passes the O’Brien test (1968 draft card burning case): a) there was constitutional authority to enact the regulation, (2) the regulation furthers a substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression and (4) the restriction on free expression is no greater than necessary to further the governmental interest.

• Public forum analysis. Derives from the common tradition that certain public places such as parks, squares, plazas are traditional public forums where the public has the right to assemble, demonstrate and debate. In these places, access cannot be regulated on the basis of content. Other public places, such as state fairgrounds, may be limited public forums, opened or dedicated by the government for expressive activity. A content-based restriction on expression will be subject to strict scrutiny. Other publicly-owned forums, such as prisons and airports, have been held to be nonpublic forums.

Other doctrines that often are used to judge the validity of First Amendment cases:

• Vagueness. If a law or regulation is too vague, it’s hard to tell whether or not you’re violating it. This problem not only violates one’s rights of due process but can act as a real chill on expression. Therefore, if a law is too vague, it’s invalid.

• Similarly, if a law is overbroad, it restricts both protected and unprotected speech. It reaches too far and can thus be declared invalid, too.

• De novo review. First Amendment cases have a special status when they are appealed. Unlike other cases, the facts, not just the lower court’s ruling, can be reviewed all over again by the higher court.

Use these terms to analyze how a court handles a First Amendment case:
1) What theory does the court seem to use? (Modern courts almost always subscribe to a preferred-position balancing theory or a Meiklejohnian theory)
2) Does the court apply some sort of content analysis to the law or regulation being challenged? If the case involves expression in a particular place, does the court use public forum analysis?
3) Does the court employ a strict scrutiny test for content-based regulations? If so, did the regulation survive such scrutiny or was it held unconstitutional?
4) If a content-neutral regulation is under challenge, does the court employ the O’Brien test (aka the intermediate scrutiny test?) What was the result?
5) Did the court hold that the regulation was either too vague or overbroad?
6) Did the appellate court use de novo review?

For an example of a court decision that employs some of these analytical tools, see U.S. District Judge Leonie M. Brinkema’s opinion in Mainstream Loudon v. Board of Trustees of The Loudon County Library, 24 F. Supp 2d 552 (E.D. Va. 1998)—Parts IV and III (that's the order they're in—don't ask me why)