Question 3:

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Freedom of Expression, 1 Amendment: Restrictions on Content, Fighting Words, Hate
Speech

(Follow Step-by-Step Analysis: 1st Issue, 2nd Issue, 3rd Issue etc.)

FIRST ISSUE: Is the ordinance void for vagueness? (If there is a lower court decision that
has explained this statute then there is no need for the vagueness analysis, and you can skip
this step)
a. Plaintiff’s Argument:
The plaintiff will argue the ordinance is unconstitutionally vague because the meaning of the
words (state them specifically) is unclear that a reasonable person would have no idea what these
words mean under the ordinance and cannot understand which expression the law permits and
which it prohibits. The plaintiff would also assert that since no lower court has interpreted the
meaning of this statutory language it becomes highly problematic since there is not actual
meaning of this ordinance. Therefore, this vague statute does not provide adequate guidelines for
a reasonable person to understand and follow and runs the risk of chilling otherwise protected
expression (explain the expression).

b. State’s Argument:
The State will argue the ordinance is not void for vagueness because within this context a
reasonable or average person would be able to understand what was intended by this ordinance.
Therefore, the plaintiff’s actions violated this ordinance because (expand on whatever the
ordinance intended).

c. Conclusion:
Based on these foregoing reasons, it is highly likely that the court could find that this statute
is void for vagueness. This is because the lower court did not provide a narrow definition for this
ordinance, nor was there any explicit wording that would help a reasonable person understand
what it permits and prohibits. It is also possible that a court would follow the plaintiff’s lead and
simply infer a reasonable and practical meaning of the words to prevent striking down the
ordinance as while and would further prove that this statute was void for its vagueness. However,
the court might also determine whether the ordinance involves an impermissible content-based
viewpoint discrimination or a permissible content-neutral, time, place, and manner restriction, as
an attempt to prevent invalidating the entire law.

SECOND ISSUE: Is there symbolic expression?

a. Plaintiff’s Argument:
Yes, there is symbolic expression here because the two-part test for symbolic expression has
been met. (1) The plaintiff has the specific intent to convey a message that (whatever it is) when
he engaged in symbolic expression; and (2) this message could be understood by the reasonable
observer. There is a no relevant or appropriate counterargument that could be made here.
THIRD ISSUE: Did they employ fighting words, hate speech, or true threats? (Rational
Basis)
a. Plaintiff’s Argument:
Fighting words are words that, when directed at a reasonable person of ordinary sensibilities,
are likely to elicit an imminent violent response from the person to whom they were addressed.
In this case, there were no fighting words present because the plaintiff lacked the specific intent
to provoke a particular person or group of persons, with normal sensibilities, to respond with an
immediate violence towards them due to their (whatever it is). The plaintiff only intended to
appeal to other’s emotions (and expand based on fact pattern). The plaintiff’s actions were
simply a result of symbolic expression, which was only intended to elicit emotion, even if that
emotion was anger. Therefore, the plaintiff’s actions coincide with the primary effects of speech
(emotion), which is protected under the First Amendment.

If, however, the government did intend to regulate this protected speech then it would
amount to impermissible censorship and violate the underlying principle of the 1st Amendment
that the government should remain neutral in matters of substantive expression. This would be
going against the policies of neutrality, the marketplace of ideas, and autonomy. Under
neutrality, the government should remain neutral when private individuals and groups exercise
their freedom of expression to prevent distorting the marketplace of ideas and censoring
messages that the government solely disproves of (expand based on fact-pattern). Further, if
government does not remain neutral then the marketplace of ideas will be adversely affected.
This is because the plaintiff’s thoughts and attempts to engage in robust exchange of ideas with
others will be tainted. This will lead to lack of diversity in viewpoints and skewing of debates
simply to appease the government, which will lead to limit the expression of certain ideas for the
benefit of others and the government. Lastly, this will also hinder the autonomy of the plaintiff,
and other, to have their own thoughts and foster new ideas if the government censors any type of
expression that might infuriate or anger certain individuals.

b. State’s Argument:
On the other hand, the state will argue that there was fighting words since there was an intent
to elicit an imminent violent response (expand why). The plaintiff’s actions were not done in an
attempt to advance democratic values but rather to provoke and/or incite an immediate violent
response. Therefore, it was permissible, if not necessary, for the state to prohibit such expression,
albeit symbolic, since it cannot be deemed protected speech because it amounted to fighting
words through conduct. As a result, the state can prohibit fighting words because they involve
the secondary effects of expression, such as violence, that are within the purview of the state to
prohibit. The state was attempting to avoid violent conduct that was likely to occur based on this
expression, which also a legitimate exercise of the state’s 10th Amendment police powers to
protect public’s safety, morals, and welfare.

c. Conclusion:
Based on the aforementioned evidence, the plaintiffs are most likely to prevail since there is
not enough evidence that their symbolic expression was intended to provoke or incite imminent
violence. Rather, they were simply attempting to (expand), which is, in fact, protected under the
1st Amendment. Although the plaintiff’s actions infuriated those around them, this does not
permit their expression to be prohibited under the 1st Amendment simply because others disagree
with their ideas.

FOURTH ISSUE: Did their actions constitute an imminent incitement of unlawful action?
(Rational Basis)
a. Plaintiff’s Argument:
No, the plaintiff’s actions did not constitute an imminent incitement of unlawful action
because there was no specific intent to incite this type of violence of unlawful action. This is
because (expand). Secondly, there was no likelihood that imminent unlawful action would ensue
from the plaintiff’s expressive/assembly activities because there was no actual violence was
resulted from their actions (expand).

If, however, the government did intend to regulate this protected speech then it would
amount to impermissible censorship and violate the underlying principle of the 1st Amendment
that the government should remain neutral in matters of substantive expression. This would be
going against the policies of neutrality, the marketplace of ideas, and autonomy. Under
neutrality, the government should remain neutral when private individuals and groups exercise
their freedom of expression to prevent distorting the marketplace of ideas and censoring
messages that the government solely disproves of (expand based on fact-pattern). Further, if
government does not remain neutral then the marketplace of ideas will be adversely affected.
This is because the plaintiff’s thoughts and attempts to engage in robust exchange of ideas with
others will be tainted. This will lead to lack of diversity in viewpoints and skewing of debates
simply to appease the government, which will lead to limit the expression of certain ideas for the
benefit of others and the government. Lastly, this will also hinder the autonomy of the plaintiff,
and others, to have their own thoughts and foster new ideas if the government censors any type
of expression that might infuriate or anger certain individuals.

b. State’s Argument:
Yes, the plaintiff’s actions did constitute an imminent incitement of unlawful action. This is
because they deliberately set out to incite and provoke violence that would lead to violence and
unlawful action. This is because (expand on how they did this). There was also a likelihood that
the plaintiff’s expressive activities were going to ensue in violence because (expand). As a result,
the state can have a legitimate reason to prevent this type of expression because they involve the
secondary effects of expression, such as violence, that are within the purview of the state to
prohibit. The state was attempting to avoid violent conduct that was likely to occur based on this
expression, which also a legitimate exercise of the state’s 10th Amendment police powers to
protect public’s safety, morals, and welfare.

c. Conclusion:
Based on the foregoing reasons, a court will most likely find there was no imminent incite of
unlawful action because the plaintiff lacked the specific intent to incite violence, and no unlawful
action was imminent. The plaintiffs were acting within their 1st Amendment rights because this
speech merely elicited emotion and did not result in secondary effects of violence that would
permit governmental regulation. If the court were to prohibit this type of expression, however, it
would contravene and distort the marketplace of ideas because individuals would not be able to
have a free trade of ideas simply because others may not agree. This would also lead to the
suppression of a robust exchange of ideas as a means of promoting truth and democratic values.

FIFTH ISSUE: Is the ordinance a content-based, impermissible viewpoint discriminatory

regulation of protected speech? (Over-broad analysis is in here too) (Strict Scrutiny) (only
need to apply free speech policies and core values once in the content analysis)
a. Plaintiff’s Argument:
Yes, it is an impermissible content-based, viewpoint discriminatory restriction of the
plaintiff’s speech and it also distorts the marketplace of ideas. The ordinance is regulating the
content, or the message, of their speech, as expressed through the symbolic expression (if that’s
the case). This ordinance does not promote neutrality because it is permitting the government to
restrict expression based on its content as in this case. For example, (expand). This contravenes
the marketplace of ideas since it does not allow for a robust exchange of ideas, which allows the
best ideas to hold true in society and is anti-democratic, especially since the message content
expresses concern about matters of public interest (expand).

The applicable standard of review in this case is strict scrutiny. Under the strict scrutiny
standard of review, the state has the burden of proving that it used the least restrictive means
available to accomplish a compelling state interest. In essence, the state must demonstrate that it
could not use less discriminatory/restrictive means pursuant to regulate the liberty interest in
issue. Although, the state might have compelling interest in (whatever), it did not accomplish this
compelling governmental objective through the least restrictive means available. This is because
using an overly broad and/or vague statute (if applicable) is not very precise since it does not
allow a reasonable person to understand what is prohibited and permitted. Nor is this the least
restrictive means to prohibit some messages but not others solely based on the content of the
message. Therefore, a court should invalidate the ordinance under this standard of review to
prevent the state from delegitimizing its exercise of 10th Amendment state police powers by
infringing upon the citizen’s liberties, such as the plaintiff’s and by arbitrarily and unreasonably
regulating speech. This also results in tyrannizing its own citizens freedom of expression by
taking away their autonomy to think for themselves and prevent their expression from being
compelled by the government.

b. State’s Argument:
The state would argue that there is not an issue about content-based viewpoint discrimination
because there is no evidence to indicate that the state was discriminating on the basis of content,
such as particular messages. The ordinance was a blanket law that was applicable to all forms of
expression regardless of the content of the message. (Explain whether it was a result of fighting
words, or an attempt to prevent inciting imminent unlawful action).

OR

This may, in fact, be a content-based restriction of speech, but it is actually a permissible

subject-matter restriction because only controversial or provocative subjects are banned, and not
the actual content of the messages. Because the state is not attempting to regulate the content of
their citizens this court should follow the deferential rational basis standard of review, since the
need for public safety is a rational and legitimate means to end. Therefore, there is a reasonable
connection between restricting provocative/controversial messages and (whatever it is).

If the court were to use strict scrutiny, the state will contend that it did have a compelling
interest in creating this subject-matter restriction since it was the least restrictive means available
to ensure (whatever it is). The state will also argue that this is a matter that should be left up to
the states to regulate. When the state restricted the plaintiff’s symbolic expression it was
pursuant to its legitimate 10th Amendment police powers to ensure public health, safety, morals,
and welfare. Additionally, according to the laboratories of democracy, the state should have the
freedom to pursue and excrement in how they can address various local problems. It is also more
efficient for the state to handle this problem than for a court to strike down this statue since the
state is in the best position to cater to the need of their citizens, especially including issues of
public safety. Lastly, if this the statute was struck down or invalidated it would be tyrannical
because the unelected federal judiciary is trying to displace state or local authority.

c. Conclusion:
Based on the aforementioned evidence, a court will most likely invalidate the ordinance and
render it an impermissible content-based viewpoint discriminatory regulation of speech because
of its wordings and the way in which the state has applied the ordinance to permit only some
kinds of messages while prohibiting others. Under strict scrutiny, the state would most likely
prevail because a compelling interest in public safety is a legitimate means to an end, but it is
unlikely that the overly broad and non-neutral means it used were not the least restrictive means
available (expand or change).

SIXTH ISSUE: Is the ordinance a content-neutral, time, manner, and place restriction?
(Over-broad analysis is in here too) (Intermediate Scrutiny)
a. Plaintiff’s Argument:
The ordinance regulates time, manner, and place restriction (only what is applicable). The
only applicable standard of review would be intermediate scrutiny. Because symbolic expression
is evident in this case, there is a special four-part test under intermediate scrutiny that must be
met: (1) government must regulate conduct unrelated to the content of expression; (2)
government must have a substantial interest; (3) the restriction must be sufficiently narrowly
tailored such that it imposes only an incidental effect upon expression; and (4) the restriction
must leave open/available ample alternative modes of communication. This content-neutral
restriction is regulating conduct related to the content of expression (expand). Additionally, this
ordinance is not narrowly tailored because it has a substantial adverse effect upon expression.
This is because the regulation is overly broad since it is regulating substantially more expression
than necessary (expand). Furthermore, this ordinance did not leave room for any reasonable
alternatives and there was essentially only one method that could be used to disseminate their
expression (expand). Therefore, this was ordinance delegitimized local police powers because it
distorted the marketplace of ideas since the free trade of ideas were restricted and created a non-
neutral attitude towards free expression and free speech. For these reasons the ordinance fails
intermediate scrutiny and is unconstitutional.
 b. State’s Argument:
The statute is a content-neutral, time, manner, and place restriction but it regulates the
conduct unrelated to the content of expression (expand based on fact pattern) and therefore has
nothing to do with the substantive content of the message expressed. The ordinance was also
narrowly tailored because it only imposed an incidental effect upon speech, such as the
secondary effects of expression. (Explain the purpose behind the speech). Therefore, the
ordinance effect was only to promote public safety, health, wealth, and morals pursuant to its
implied 10th Amendment police powers. The 1st Amendment does not guarantee that all citizens
will be subjected to the most desirable means of expression but rather that there will be several
alternatives available, which was there was in this case. This is because (expand). The state
should also have the ability to freely experiment in how to deal with issues that may arise in their
city. This should thus be left up to the state, which would be more efficient than the courts to
decide local matters.

c. Conclusion:
For these reasons, the ordinance will most likely be struck down for being too broad and possibly
not leaving ample modes of alternative communication available to the plaintiff (expand).
Because the ordinance is also regulating conduct related to its expression it is overbroad in its
application and is regulating substantially more expression than necessary. The ordinance was
not narrowly tailored because it indirectly exerted a substantial adverse effect upon their
expression.