II. General Overview

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

II. GENERAL OVERVIEW

The foundation of the First Amendment is "in having free and unhindered debate on matters of public importance."² Accordingly, a primary inquiry in determining the protection afforded to speech is how the speech relates to this concept. Speech that relates to matters of public concern furthers this underlying concept, while other forms of speech, like obscenity, fighting words, defamation, or criminal speech, enjoy no inherent protection.³ The government generally has broad latitude to prohibit the content of such unprotected speech.⁴ Government regulations that have the purpose or effect of regulating protected speech based on content, in contrast, are presumptively invalid and subject to a high level of scrutiny pursuant to which a regulation will only be upheld if narrowly tailored to achieve a compelling government interest for which no other content-neutral alternatives exist.⁵

A. Protected Speech and Expressive Conduct

Protected speech involves both written and spoken messages, from the soapbox to the picket sign to printed words. The "creation and dissemination of information are speech within the meaning of the First Amendment."⁶ As the Supreme Court stated in New York Times Co. v. Sullivan, free speech issues are assessed against a "background of profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."⁷ Accordingly, speech that touches on such issues is afforded a high level of protection under the law. Conversely, certain categories of speech historically have not been afforded the same protection, including incitement of imminent unlawful action, obscenity, defamation, speech integral to criminal conduct, "fighting words," child pornography, fraud, true threats, and speech presenting some grave and imminent threat the government has the power to prevent.⁸

In between these two bookends falls commercial speech. Commercial speech—speech that "does no more than propose a commercial transaction"—is subject to lesser protection.⁹ In this area, the law recognizes the inevitable conflict between commercial speech and "the underlying transaction" that may be appropriate for regulation, which thereby confers the government with "a concomitant interest in the expression itself."¹⁰

First Amendment protections also extend to "expressive conduct" that equates to speech, such as demonstrations, picketing and strikes, and flag burning.¹¹ In these situations, protection may turn on whether the speaker can establish that conduct was intended to be and reasonably could be understood by a viewer as communicative.¹² Relatedly, the courts include expressive associations within the implied scope of First Amendment protections. Expressive association is gathering "in association for the purpose of advancing shared beliefs."¹³

One form of expressive conduct that is subject to specific limitations under the First Amendment is the political activities of employees. In Elrod v. Burns, the Supreme Court recognized a First Amendment right for public employees to be free of patronage pressures, including the pressure to contribute to a political party, to vote for particular candidate, to campaign for candidates, or otherwise to compromise their own political views as a condition of public employment.¹⁴

Recognizing the need of partisan elected officials to be able to seek and rely on the advice of similarly oriented individuals, policy-making positions are exceptions to that First Amendment right.¹⁵ An employee who "acts as an advisor or formulates plans for the implementation of broad goals" is in such a position.¹⁶ However, "the ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." ¹⁷

Positions that have been held to constitute policy-making positions include the following:

• human resources director ¹⁸
• police chief ¹⁹
• assistant deputy superintendent in sheriff's department ²⁰
• school superintendent ²¹
• executive director of community development agency ²²
• commissioner of streets and alleys, road manager, and highway superintendent ²³
• deputy superior court clerk ²⁴
• assistant director of city department of social services ²⁵
• assistant county prosecutor ²⁶

Other positions, while reflecting significant responsibilities, may not involve actual functions for which loyalty to a particular political affiliation bears any relevance, many times because the discretion and responsibilities of the position rest in the employee's professional and not political judgment.²⁷

The extent to which the associational activities of employees may provide the basis for an actionable claim within the applicable First Amendment framework is a concept that has been in flux. One issue that remains unresolved is the extent to which an employee's associational activities must pertain to a matter of public concern in order to raise a constitutional violation. Some courts have required such a showing to support a claimed violation, whereas other courts assert that the issue of freedom of association inherently pertains to personal relationship regardless of public interest.²⁸

The legal landscape regarding the manner and basis on which an employee may assert a constitutional violation based on an employee's associational activities as a union member continues to evolve.²⁹ In State Employees' Bargaining Agent Coalition v. Rowland, the Second Circuit extended the framework of Elrod v. Burns to union membership, affording union membership the same level of protection as political party member-ship.³⁰ Accordingly, the Second Circuit determined that employment decisions based on union activity would be subject to heightened scrutiny.³¹The challenge in that case arose in response to the State's layoff of union members as a bargaining tactic to obtain concessions from the union. The court determined that the firings were not specific to specific budget savings or that "the State's fiscal health required firing only union members, rather than implementing membership-neutral layoffs." ³² The court also rejected the State's argument that the layoffs were intended to pressure the union to agree to economic concessions that would have had a long-term impact on the State's fiscal health, a vital governmental interest. In doing so, the court focused on the Supreme Court's statement in Elrod that "'conditioning the retention of public employment on the employee's' association with a certain group 'must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights' " and concluded that the State had not made such a sufficient showing to justify terminating only union employees.³³

B. Regulation of Speech

The government generally may not regulate speech based on the content of the speech.³⁴ Whether a regulation is related to the content of speech turns on the government's purpose and is determined by review of the terms of the law itself. The inquiry on review focuses on ascertaining whether the purpose of the law is to target speech based on the message or whether the terms of the law "distinguish favored speech from disfavored speech on the basis of the ideas or views expressed." ³⁵

Where a regulation imposes a restriction on speech, the regulation must withstand "strict scrutiny" in light of First Amendment rights—the government can only impose regulations on the content of speech that is "justified by a compelling interest and narrowly drawn to serve that interest." ³⁶ Such regulations must be necessary to solve an identified problem, and the regulation must reflect the least restrictive alternative to address the problem that is effective in doing so.³⁷ Regulations that may burden protected speech and be subject to review and content-based restrictions include those addressing picketing and leafleting; ³⁸ solicitation ordinances; ³⁹ restrictions on the sale or transmission of specified content, like violent video games; ⁴⁰ and restrictions on other specific forms of entertainment, like plays and movies ⁴¹ or even fortune-telling ⁴² and street performance.⁴³

A regulation that does impose a content-neutral restriction must still serve a substantial government interest and not restrict First Amendment rights any greater than necessary to advance such interests.⁴⁴ A content-neutral threshold likewise applies to evaluate regulations that reach expressive conduct. Reasonable time, place, and manner restrictions may be applied to restrict expressive speech. Regulation of expressive conduct must be imposed in a manner narrowly tailored to further a content-neutral substantial government interest that leaves open alternative channels for communication for information.⁴⁵

Nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.⁴⁶

Unlike the "strict scrutiny standard" that governs content-based regulations, to be narrowly tailored to its purposes, a content-neutral regulation that affects speech is not required to be the "least restrictive" means of regulating the activity but may be considered narrowly tailored if the governmental interests would be achieved less effectively absent the regulation.⁴⁷Content-neutral and reasonable time, place, or manner regulations may also take the form of noise ordinances; ⁴⁸ panhandling ordinances; ⁴⁹ "buffer zone" ordinances restricting speech within a certain area; ⁵⁰ and overlapping restrictions on the use of a specified...