The First Amendment and Neutrality Between Government and Citizens
Prepared by
Peter J. Mancus
Attorney at Law
(707) 824-19884
Copyright Peter J. Mancus 2005

pmancus@prodigy.net

Limits on What a Statute May Discriminate Against

A statute may not discriminate on the basis of a speaker's viewpoint in
violation of the First Amendment [Chaker v. Crogan (9th Cir. 2005) 2005 U.S.
App. LEXIS 23728] or regulate speech in ways that favors some viewpoints or
ideas at the expense of others. Members of City Council of Los Angeles v.
Taxpayers for Vincent (1984) 466 U.S. 789, 804.

Govt May Not Suppress a Point of View

The government violates the First Amendment when it denies access to a speaker
solely to suppress the point of view he espouses. Cornelius v. NAACP Legal Def.
& Educ. Fund, Inc. (1985) 473 U.S. 788, 806; Perry Educ. Ass'n v. Perry Local
Educators' Ass'n. (1983) 460 U.S. 37, 46.

Government imposed limits on free speech, especially that critical of government
or its agents or both, even when alleged to be justified to save valuable public
resources, is suspect and diminishes government's credibility when the speech
sought to be curtailed is speech critical of government or its agents or both.
City of Ladue v. Gilleo (1994) 512 U.S. 43, 52; Republican Party of Minn. v.
White (2002) 5236 U.S. 765, 780. Government, in regulating speech, may not
attempt to give one side of a debatable public question an advantage in
expressing its views to the people. First Nat. Bank of Boston v. Bellotti
(1978) 435 U.S. 765, 785-786; Moser v. F.C.C. (9th Cir. 1995) 46 F.3d 970, 974.

Suspicion that viewpoint discrimination is afoot is at its zenith when the
speech restricted is speech critical of the government because there is a
strong risk that the government will act to censor ideas that oppose is own.
Texas v. Johnson (1989) 491 U.S. 397, 411-417; Chaker v. Crogan (9th Cir. 2005)
2005 U.S. App. LEXIS 23728; Ridley v. Mass. Bay Transp. Auth. (1st Cir. 2004)
390 F.3d 65, 86. Government has no legitimate power to "prescribe what shall be
orthodox". W.Va. State Bd. of Educ. v. Barnette (1943) 319 U.S. 624, 642.

Any regulation of speech that creates an imbalance where only individuals
critical of government or its agents are subject to a restriction or liability
and not those who are supportive impermissibly turns the First Amendment on its
head. Chaker v. Crogan (9th Cir. 2005) 2005 U.S. App. LEXIS 23728.

A statute may not have a content-based or viewpoint-based regulation of speech
in violation of the First Amendment. Hamilton v. City of San Bernardino (C.D.
Cal. 2004) 325 F.Supp.2d 1087; Eakins v. Nevada (D. Nev. 2002) 219 F.Supp.2d
1112.

Government may not prohibit speech critical only of the government. R.A.V. v.
City of St. Paul (1992) 505 U.S. 377, 384.

Viewpoint discrimination concerns arise when the government intentionally tilts
the playing field for speech, reducing the effectiveness of a message or making
it harder to disseminate it, as opposed to repressing it entirely. Government
has no authority to license one side of a debate to fight freestyle while
requiring the other to follow Marquis of Queensberry rules. R.A.V. v. City of
St. Paul (1992) 505 U.S. 377, 391-392.

The First Amendment has a "core requirement of viewpoint neutrality". Chaker v.
Crogan (9th Cir. 2005) 2005 U.S. App. LEXIS 23728; Gen. Media Commc'ns, Inc. v.
Cohen (2nd Cir. 1997) 131 F.3d 273, 282, n. 12.

California Penal Code § 148.6 impermissibly regulates speech on the basis of
the speaker's viewpoint. Chaker v. Crogan (9th Cir. 2005) 2005 U.S. App. LEXIS
23728.


First Amendment Rights are Fundamental

Freedom of speech and freedom of the press are among the fundamental personal
rights and liberties protected by the Fourteenth Amendment from invasion by the
states. Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 570.

Free Trade in Unpopular Ideas is Classic Constitutional Conduct

The hallmark of the protection of free speech is to allow a free trade in ideas,
including ideas that the overwhelming majority believe are distasteful and
discomforting. Viginia v. Black (2003) 538 U.S. 343, 358.

Broad Right to Criticize Government and Its Officials With Immunity

The right to criticize the government and its officials, including uninhibited,
robust, wide-open, vehement, caustic, and unpleasantly sharp attacks, is a
quintessential right guaranteed by the United States and California
constitutions. Garrison v. Louisiana (1964) 379 U.S. 64, 74-75; New York Times
Co. v. Sullivan (1964) 376 U.S. 254, 270; People v. Atkinson (2002) 29 Cal.4th
497, 504.

Criticizing Government and Its Officials Enjoys Highest First Amendment
Protection

Speech criticizing the government and its officials receives the highest First
Amendment protection. People v. Atkinson (2002) 29 Cal.4th 497, 504. Thus,
adverse consequences do not attach to a false statement unless it is a knowing
or reckless falsehood because honestly believed statements still contribute to
the free interchange of ideas and the ascertainment of the truth. Id., 505;
Garrison v. Louisiana (1964) 379 U.S. 64, 72-73.

Criticism of Police Officers is Protected

The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers. City of Houston v. Hill (1987) 482 U.S.
451; Mackinney v. Nielsen (9th Cir. 1995) 69 F.3d 1002, 1007. The freedom to
speak out against police action is one important characteristic by which we
distinguish ourselves from a police state. Duran v. City of Douglas (9th Cir.
1990) 904 F.2d 1372, 1378. Laws that attempt to curb speech concerning police
misconduct warrant close judicial scrutiny. United States v. Poocha (9th Cir.
2001) 259 F.3d 1077, 1082. ["Criticism of the police, profane or otherwise, is
not a crime."]

Limits on Criticism of Public Officials

Knowingly false speech regarding a public official is generally not protected by
the First Amendment. Garrison v. Louisiana (1964) 379 U.S. 64; New York Times
Co. v. Sullivan (1964) 376 U.S. 254; Chaker v. Crogan (9th Cir. 2005) 2005 U.S.
App. LEXIS 23728.

First Amendment Bars Government Discrimination Based on Content

It is axiomatic that the government may not regulate speech based on its
substantive content or the message it conveys. Rosenberger v. Rector (1995) 515
U.S. 819, 828; Police Dept. Of Chicago v. Mosley (1972) 408 U.S. 92, 96.

In the realm of private speech or expression, government regulation may not
favor one speaker over another. Rosenberger v. Rector (1995) 515 U.S. 819, 828;
Members of City Council of Los Angeles v. Taxpayers for Vincent (1984) 466 U.S.
789, 804.

Discrimination against speech because of its message is presumed to be
unconstitutional. Rosenberger v. Rector (1995) 515 U.S. 819, 828; Turner
Broadcasting System, Inc. V. FCC (1994) 512 U.S. 622, 641-643.

The First Amendment generally prevents government from proscribing speech or
expressive conduct because of disapproval of the ideas expressed. Virginia v.
Black (2003) 538 U.S. 343, 358; R.A.V. v. City of St. Paul (1992) 595 U.S. 377,
382.

Content based regulations are presumptively invalid. R.A.V. v. City of St. Paul
(1992) 595 U.S. 377, 382.

The First Amendment does not permit government or its officials to impose
special prohibitions on speakers who express views on disfavored subjects.
R.A.V. v. City of St. Paul (1992) 595 U.S. 377, 391; Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116; Arkansas
Writers' Project, Inc. v. Ragland (1987) 481 U.S. 221, 229-230.

The First Amendment bars a State's content discrimination of proscribable
speech. R.A.V. v. City of St. Paul (1992) 595 U.S. 377, 382, 387; People v.
Atkinson (2002) 29 Cal.4th 497, 507.

Content discrimination is especially taboo because it "raises the specter that
the Government may effectively drive certain ideas or viewpoints from the
marketplace." R.A.V. v. City of St. Paul (1992) 595 U.S. 377, 387-388; People
v. Atkinson (2002) 29 Cal.4th 497, 508. Thus, content suppression creates a
realistic possibility of official suppression of ideas. Id., 509.

Truth May Not be Made Subject to Any Sanction

Truth may not be the subject of either civil or criminal sanctions where
discussion of public affairs is concerned. Garrison v. Louisiana (1964) 379
U.S. 64, 72-73; People v. Atkinson (2002) 29 Cal.4th 497, 505. Only false
statements made with a high degree of awareness of their probable falsity may
be made the subject of civil or criminal sanctions. Garrison v. Louisiana,
supra, 379 U.S. at 74.

Government May Not Constitutionally Impose Financial Burdens Against Disfavored
Speakers

Government offends the First Amendment when it imposes financial burdens against
a speaker based on the content of the speaker's expression. Rosenberger v.
Rector (1995) 515 U.S. 819, 828; Simon & Schuster, Inc. v. Members of N.Y.
State Crime Victims Bd. (1991) 502 U.S. 105.

Government May Not be Allowed to Control the Agenda

The scope of freedom of speech and of the press is the freedom to discuss
publicly and truthfully "all matters of public concern" without "restraint of
fear of subsequent punishment." Thornhill v. Alabama (1940) 310 U.S. 88,
101-102. For freedom of discussion to fulfill its vital function, it "must
embrace all issues about which information is needed or appropriate to enable
members of society to cope with the exigencies of their period." Id. This
freedom includes the discussion of governmental affairs. Mills v. Alabama
(1966) 384 U.S. 214, 218. It is not government's function to select which
issues are worth discussing or debating. City of Ladue v. Gilleo (1994) 512
U.S. 43, 55, n. 13; Brown v. Hartlage (1982) 456 U.S. 45, 60. Government may
not dictate the subjects about which a person may speak or who may address a
public issue. First National Bank of Boston v. Bellotti (1978) 435 U.S. 765,
783-785, 790-791; Police Dept. of Chicago v. Mosley (1972) 408 U.S. 92, 96.

When Government Violation of the First Amendment is Blatant

When the government targets a person because of the person's views on a given
subject, the government's violation of the First Amendment is all the more
blatant. Rosenberger v. Rector (1995) 515 U.S. 819, 829; R.A.V. v. City of St.
Paul (1992) 595 U.S. 377, 391.

Government's Viewpoint Discrimination is Egregious

Government's imposition of a sanction against a person because of the person's
viewpoint is an egregious form of viewpoint discrimination. Rosenberger v.
Rector (1995) 515 U.S. 819, 829. Government must abstain from regulating speech
when its motivation is to silence the ideology, opinion, or perspective of the
person targeted for its discrimination. Perry Ed. Assn. v. Perry Local
Educators' Assn. (1983) 460 U.S. 37, 46.

The essence of a viewpoint discrimination claim is that the government has
preferred the message of one speaker over another. Rosenberger v. Rector (1995)
515 U.S. 819, 829.

A discrimination is viewpoint based if it denies access to a speaker solely to
suppress the point of view the speaker espouses. Cornelius v. NAACP Legal
Defense and Educ. Fund (1985) 473 U.S.788, 806.

Government may not prohibit the expression of an idea because society finds the
idea itself offensive or disagreeable. Texas v. Johnson (1989) 491 U.S. 397.

Viewpoint discrimination involves an intent to discourage one viewpoint and
advance another. United States v. Kokinda (1990) 497 U.S. 720.

Viewpoint discrimination is a particularly "egregious" subset of content
discrimination in which "the government targets not subject matter but
particular views taken by speakers on a subject." Rosenberger v. Rector (1995)
515 U.S. 819, 829.

The First Amendment's prohibition against viewpoint discrimination applies to
protected and unprotected speech. R.A.V. v. City of St. Paul (1992) 595 U.S.
377, 383-384, 391-392.


Government May Not Engage in Viewpoint Discrimination Even in a Forum It Creates

Government may not exercise viewpoint discrimination even when the limited
public forum is one of its own creation. Rosenberger v. Rector (1995) 515 U.S.
819, 829. Once government has opened a limited forum it must respect the lawful
boundaries it has set for itself, and it may not exclude speech where its
distinction is not reasonable in light of the purpose served by the forum nor
may it discriminate against speech on the basis of its viewpoint. Id. At most,
government might have the power to engage in content discrimination, which
might be permissible, if such discrimination preserves the purpose of the
limited forum, but, government may not engage in viewpoint discrimination when
the viewpoint is otherwise within the forum's limitations. Id.

Government Censorship of Ideas and Viewpoint Discrimination is Dangerous to
Liberty

One vital purpose of the First Amendment is to prevent a "first danger to
liberty," namely, granting government and its agents the power to pass judgment
on ideas and publications and to classify them based on some ultimate idea.
Rosenberger v. Rector (1995) 515 U.S. 819, 835. A "second, and corollary,
danger to free speech is the "chilling of individual thought and expression."
Id.

Government Neutrality is Required

The First Amendment forbids the government to regulate speech in ways that favor
some viewpoints or ideas at the expense of others. Members of City Council of
Los Angeles v. Taxpayers for Vincent (1984) 466 U.S. 789, 804. Restrictions on
speech in designated public forums must be reasonable and viewpoint neutral.
Rosenberger v. Rector (1995) 515 U.S. 819, 829.

Government must enforce its guarantee of neutrality among competing views based
on neutral criteria and evenhanded policies. Rosenberger v. Rector (1995) 515
U.S. 819, 839.

The Knowing Use of a Lie Does Not Enjoy Any Constitutional Protection

"[T]he use of the known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which economic, social, or
political change is to be effected. . . . Hence the knowingly false statement
and the false statement made with reckless disregard of the truth, do not enjoy
constitutional protection." Garrison v. Louisiana (1964) 379 U.S. 64, 75.

Government May Censor Only to Promote a Compelling Interest

The danger of government censorship based on content discrimination may be
employed only when it is necessary to serve a compelling interest. R.A.V. v.
City of St. Paul (1992) 595 U.S. 377, 395; Burson v. Freeman (1992) 504 U.S.
191, 199.

Classifications Involving Fundamental Rights Require Heightened Scrutiny

Classifications affecting fundamental rights must survive heightened scrutiny.
FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313. When governmental
regulation discriminates among speech-related activities in a public forum, the
Equal Protection Clause mandates that the legislation be finely tailored to
serve substantial state interests, and the justifications offered for any
distinctions it draws must be carefully scrutinized. Carey v. Brown (1980) 447
U.S. 455, 461-462.

A penal statute that implicates constitutionally protected rights, including
First Amendment freedoms, is subject to a more stringent vaguess analysis.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982) 455 U.S.
489, 498.

When a conviction implicates a defendant's First Amendment rights a reviewing
court must conduct a full independent review of the record and exercise its
independent judgment as to the legal issues involved. Bose Corp. v. Consumers
Union of United States, Inc. (1984) 466 U.S. 485, 505-506.

The mere fact that a regulation requires interpretation does not make it vague.
McConnell v. FEC (2003) 540 U.S. 93, n.64; Rose v. Locke (1975) 423 U.S. 48,
49-50.

The vagueness inquiry is most rigorous in a criminal context, where there is a
high risk speech will be chilled. Nat'l Endowment for the Arts v. Finley (1998)
524 U.S. 569, 581-583, 588-589.

First Amendment Issues Require a Reviewing Court to Review the Entire Record

A case that presents a First Amendment issue requires the reviewing court to
make an independent examination of the whole record. Bose Corp. v. Consumers
Union of United States, Inc. (1984) 466 U.S. 485, 499.

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