1

1
Remedies and the First Amendment

• Enjoining Statutes and Court Orders that Violate
  the First Amendment

2
Speech

• Any form of printed or oral communication

• And symbolic speech
• Examples

3
Two Aspects

• A statute (or other enactment) that violates the
  First Amendment can be enjoined either by a claim
  or as a defense.

• Common law claims (especially defamation) are
  subject to the 1st Am.
• Orders (to pay or injunctions) are state
  actions
• Injunctions in addition may be prior restraints

4
Content v. Conduct Regulation

• Non-content neutral
• Most likely unconstitutional
• Regulation must be (1) ____________ to a
  __________ state interest and (2) _________
  drawn to meet that interest.

• Time, place manner
• More likely constitutional
• Upheld so long as (1) the regulation (a) furthers
  an ____________ or _____________ state interest
  and (b) is narrowly tailored to meet that
  interest and (2) alternative ______ ___________
  are available and left open.

5
Content Regulation

• Regulation affecting content likely
  unconstitutional.
• Exceptions
• Fighting words
• Inciting clear present danger
• Obscenity
• False or dangerous ads
• Defamatory Speech can be punished.

6
Conduct Regulation Test Turns on Forum

• Public forum a place that has ______ been used
  to publicly assemble, discuss public questions
  and communicate.
• Examples
• Test
• Content neutral
• Narrowly tailored to meet significant govt
  interest
• Leave ample channel open
• Limited public forum created where govt
  _______ opens public property that wasnt a
  traditional PF for ______ activity.
• Examples
• Test same as above

• Nonpublic forum a _______ owned place that is
  not by ______ or ______ for public communication.
• Examples
• Test
• Content neutral
• Reasonably related to legitimate govt interest
• Private forum
• Examples
• Test

7
Ritell Content Neutral or Not? (3)

• Facts?
• What type of forum?
• What was the challenged regulation?
• Preliminary or permanent injunction sought?
• Why isnt P required to prove hes entitled to a
  permanent injunction (i.e., to prove his claim?)
• P sought 2 injunctions
• Mandatory injunctive relief sought
• Negative injunctive relief sought
• Mandatory relief is _____ difficult to obtain.
• Whats the irradequacy?

• Was the regulation content neutral, or not? Why?
• What is states interest in regulation?
• Why is it narrowly drawn it bans all signs!?
• What form of communication remains unhindered?

8
Marilyn Manson (11)

• Facts?
• Is music speech
• Even MMs?!
• What was regulation?
• What state interests were offered?
• Why likely to succeed on merits
• Nonpublic forum
• limited
• Public?

• Why irradequacy?
• What about harm to D?
• Public interest?

9
Defamation and 1st Amendment

• What standards govern money damages?
• When, if ever, is Injunctive Relief Proper?

10
Money Damages

• 1st Am. limits defamation claims when either
• (1) the plaintiff is either (a) a public _____ or
  (b) a public _____ or (2) the allegedly
  defamatory statement involves a matter of _____
  ________.

• Common law (1) of defamatory language (2) of
  or concerning the plaintiff (3) published
  through the defendant to a third person and (4)
  damage to the reputation (or per se)
• Constitutional defamation if the claim is by a
  public figure or official or arises out of a
  statement of public interest, the plaintiff must
  also show (4) __________ and (5) ______
• How much fault?
• Public figure/official
• Private figure

11
Matters of public concern

• Whats it mean?

12
Whos a PO, LPF, or PF?

• Is every government employee a PO for purposes of
  constitutional defamation?
• Who is?
• Why less protection?

• Is every actor, actress, singer, and so on a PF?
• Who is?
• Why less protection?
• Whats an LPF?
• (1)
• (2)
• (3)
• Why less protection?

13
Mazur (24)

• Facts?
• Claim?
• Private, LPF, or public figure? Why?
• Private or public matter? Why?

• Why was the March 20 letter per se defamatory?
• Why not the April 3?

14
Prior Restraints

• Extremely difficult to uphold over 1st Am.
• Examples upheld

• Defamation
• General rule equity will ______ ____ a libel.
• Exceptions?

15
Georgias Rule

• Retail Credit
• What claim?
• What result at trial?
• What type of injunction granted?
• What scope?

• Cohen (21)
• Facts
• Claim
• Public/private P?
• Public/private matter?
• What type of injunction granted?
• What scope?
• Proper or not?

Georgias Rule___________________________________
_________
16
Why Other Courts Disagree

• Why do an apparent majority of courts refuse to
  enjoin future statements of even the specific
  words found by a jury to be defamatory?
• California
• Illinois

17
Compelled Speech

• Will courts enter mandatory injunctions requiring
  publishers to make certain statements?

• Why?