MEDIA LAW (JOUR 3633)
Anytime a government (state, city council, school board, etc.)
passes a law that restricts or regulates freedom of expression, there
must be a recognition of the "government's interest." This is also
called "state's interest." The government's interest is often based on
the health, safety and welfare of its citizens. Protecting children is
a very commonly stated government interest.
From the very beginning of this class until the end, you will need to think about "the government's interest."
Along with "government's interest" goes ...
"STANDARD OF PROOF"
You don't know too much about it now, but by the time we finish with libel, you'll have a better understanding.
Often, the issue in a case is: "What does the government have to prove?" Remember that the burden of proof (who has to do the proving) is always on the government in First Amendment cases. (Kinda like "Innocent until proven guilty.")
Depending on what kind of speech it is, the government may have to prove a more or less important government interest.
For instance, if the speech is political speech -- as we know, the most highly protected -- the government has to prove "strict scrutiny." This is loosely defined as requiring a compelling government interest and the regulation must be necessary to serve the interest.
If, on the other hand, the speech is advertising -- which gets only "second-class" protection -- the government has to prove "intermediate scrutiny." The government only has to show a legitimate or substantial government interest (which -- - believe me, I'm a lawyer -- is less than "compelling") and the regulation only has to "directly or materially advance" the government's interest -- a lesser standard than to be "necessary."
Occasionally, what looks like a speech case is characterized as something else and will get only "rational basis" scrutiny, when the court says: "Well, the legislators thought it was a good idea, so it's OK with us." This can happen when the conduct the regulation seeks to restrict can be said to be unrelated to speech, but seldom do your cases get this very low level of scrutiny.