a) The right to free speech is not absolute (even though it looks that way) [preferred rights approach to the C, not the absolutist approach, which never got majority of Court]
i) Content Based: Direct regulation of speech.
(1) What is it? A direct regulation is a content based regulation. We make laws regarding what your message can contain; what you can communicate.
(2) what we directly regulate (content based regulations):
(a) clear and present danger Shenck
(b) fighting words Chaplinsky
(c) obscenity Miller (very subjective test)
(d) defamation NY Times v. Sullivan
(e) commercial speech Central Hudson
(f) lemon test Reynolds & Lemon
(g) ?compelling state interest if there is a compelling interest, will pass strict scrut.
ii) Content Neutral: Indirect regulation of speech is permissible if the regulation is…
(1) content neutral
(2) narrowly tailored
(3) leaves ample alternative channels
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