First Amendment Litigation

The First Amendment to the United States Constitution protects freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government. In practice, it means the government cannot punish individuals for expressing opinions, publishing criticism, engaging in political speech, or participating in protest. The First Amendment constrains government action, not private parties. The Supreme Court has recognized narrow, historically rooted categories of unprotected speech — including defamation, fraud, fighting words, and speech integral to criminal conduct — that the government may regulate without triggering full First Amendment scrutiny.

The First Amendment constrains government, not private parties. A lawsuit brought by a private plaintiff — for defamation, copyright infringement, or any other claim — is not itself a First Amendment violation. However, the First Amendment is not entirely absent from private litigation. Copyright law contains built-in First Amendment accommodations, including the statutory fair use defense, which protects uses of copyrighted material for commentary, criticism, news reporting, and research. The First Amendment also prohibits the government from coercing private actors into suppressing other private parties’ speech. Where a private lawsuit is used as a vehicle to punish constitutionally protected expression, First Amendment defenses — and Florida’s anti-SLAPP statute — may be available.

A prior restraint occurs when the government prohibits speech before it occurs — through a court-ordered injunction, a licensing requirement, or another mechanism requiring government approval before publication. Prior restraints are among the most condemned forms of speech restriction under the First Amendment because they most closely resemble the official censorship the First Amendment was designed to prevent. They carry a heavy presumption of invalidity. If a prior restraint involves a content-based restriction or grants a licensing official unduly broad discretion, courts may require the government to go to court promptly and prove the restraint’s constitutionality before it takes effect. Prior restraints are not automatically unconstitutional, but they face an exceptionally demanding standard.

Political speech receives the highest level of First Amendment protection. This includes campaign speech, commentary on elected officials, criticism of government policy, and participation in political organizations. Government restrictions on political speech are subject to strict scrutiny — the most demanding standard of judicial review.

Fair use is a defense under copyright law that permits limited use of copyrighted material without permission for purposes such as commentary, criticism, news reporting, and parody. Fair use serves First Amendment values by preventing copyright holders from using intellectual property claims to suppress constitutionally protected expression. In Katz v. Chevaldina, Marc A. Burton obtained summary judgment in the district court for a defendant blogger whose use of a plaintiff’s photograph in online criticism was held to be protected fair use. The ruling was affirmed by the Eleventh Circuit as Katz v. Google Inc., 802 F.3d 1178 — a landmark decision at the intersection of copyright and the First Amendment.

A SLAPP suit — Strategic Lawsuit Against Public Participation — is a lawsuit filed primarily to silence criticism or public commentary rather than to vindicate a legitimate legal claim. Florida enacted an anti-SLAPP statute (Florida Statute § 768.295) that provides a mechanism to dismiss SLAPP suits early in litigation. Because the harm of a SLAPP suit often lies in the burden of litigation itself rather than the merits, the anti-SLAPP statute is designed to short-circuit abusive suits before they can exhaust a defendant’s resources or chill continued expression.