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Con Law > Freedom of Expression > Flashcards

Freedom of Expression Flashcards

1
Q

What is protected by Freedom of Expression

A

The government may not interfere with or distort the marketplace of ideas, especially with respect to political speech

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2
Q

What is standard of analysis for content-based discrimination

A

Strict scruitny

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3
Q

What are exceptions to strict scrutiny regarding regulation of speech

A
  1. unprotected or low value speech
  2. government as speaker
  3. content-neutral conduct regulation
  4. content-neutral time, place and manner regulation
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4
Q

What is standard of review regarding laws affecting unprotected speech?

A

Regulations that relate to unprotected speech are subject to rational basis review

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5
Q

What is unprotected speech

A
  1. speech that advocates violence or unlawful action
  2. fighting words
  3. hostile audience speech
  4. obscene speech
    5 defamatory speech
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6
Q

What is low-value speech

A
  1. commercial speech
  2. sexual or indecent speech
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7
Q

What is the nature of speech advocating violence or unlawful action?

A

Speech advocating violence or unlawful action may be regulated when advocacy is:
1. directed to inciting or producing imminent lawless action
2. likely to incite or produce such action

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8
Q

What are fighting words?

A

Speech is unprotected as fighting words when it is words likely to incite an ordinary citizen to commit immediate physical retaliation. The speech must be more than annoying or offensive and must be a direct and personal insult

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9
Q

What is hostile audience speech?

A

Unprotected hostile audience speech is speech that elicits an immediate violent response against the speaker by an audience.

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10
Q

When can hostile audience speech be regulated?

A

Speech may be regulated only after police make a reasonable effort to protect the speaker and guard against a “heckler’s veto” of unpopular speech

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11
Q

What is obscene speech?

A

Speech is unprotected as being obscene if:
1. the average person, applying local contemporary community standards would find the work, taken as a whole, appeals to the prurient interest
2. the work depicts or describes in a patently offensive way, sexual conduct that is specifically defined by state law
3. the work, taken as a whole, lacks serious literary, artistic, political or scientific value

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12
Q

What is defamatory standard regarding a private person and matter of private concern

A

Negligence only, no proof of malice

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13
Q

What is defamatory standard regarding a private person and matter of public concern

A

Must prove negligence about the truth or falsity of the statement , no malice required

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14
Q

What is defamation standard regarding public official or public figure regarding either matter of public or private concern

A

Must prove actual malice
-defined as knowledge of the falsity of the statement, or reckless disregard of the truth or falsity of the statement

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15
Q

What is defamation standard for private person suing the media regarding false-light invasion of privacy concerning matters of private interest?

A

Negligence?

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16
Q

What is defamation standard for private person suing the media regarding false-light invasion of privacy concerning matters of public interest?

A

Must prove actual malice

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17
Q

What is defamation standard for private person suing the media regarding false-light invasion of privacy concerning matter of either public or private interest that’s TRUE

A

Newspaper or broadcaster will never be liable for publishing truthful information obtained from a public record

18
Q

When can government regulate commercial speech generally?

A

Government can regulate commercial speech that is false or deceptive, or that relates to an unlawful activity

19
Q

When can government regulate commercial speech that isn’t false or deceptive and doesn’t relate to unlawful activity?

A

Regulation of commercial speech must:
1. serve substantial governmental interest
2. directly advance the substantial governmental interest
3. not be more extensive than is necessary to serve that interest

20
Q

Is Sexual or indecent speech protected

A

Indecent speech is fully protected but can be regulated on the basis of secondary effects

21
Q

What is required for secondary effects regulation of indecent speech?

A

Secondary effects regulations must serve a substantial government interest and leave open reasonable alternative channels of communication

22
Q

What are restrictions upon government as speaker

A

When government is the speaker, the government may say what it wants

23
Q

When is conduct regulation regarding expression allowed

A

A law that regulates conduct and creates an incidental burden on speech is allowable if:
1. the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression
2. the incidental restriction on speech is no greater than necessary to further that interest

24
Q

What are time, place, and manner regulation requirements for public forums

A

Regulations must:
1. be content-neutral as to both subject matter and viewpoint
2. be narrowly tailored to serve an important government interest
3. leave open alternative channels of communication

25
Q

What are examples of valid public forum time, place and manner regulations

A

-Require large gatherings to get a permit to use public property (the criteria to
receive a permit must be defined and content neutral)

-Restrict the volume and hours of amplifiers

26
Q

What are examples of invalid public forum time, place and manner regulations

A

-requiring parades or marches to pay for police protection
-enacting complete bans on door-to-door solicitation

27
Q

What are time, place, and manner regulation requirements for non-public forums

A

Regulation must be reasonably related to legitimate government purpose

28
Q

What are examples of valid private forum time, place and manner regulations

A

-Prohibit demonstrations on jailhouse grounds
-close military bases to political speeches and distribution of leaflets
-Regulate speech in government workplaces
-Sell commercial advertising on a city bus but refuse to sell such space for political advertising

29
Q

What are examples of invalid private forum time, place and manner regulations

A

-deny use of public school facilities to relgious groups if other public and private groups are allowed similar access

30
Q

Can government restrict public employment based on membership in a political organization

A

Generally individual can’t be denied public employment based on membership in a political organization except for high-level policy making positions

31
Q

When may an individual be denied public employment based on political association

A
  1. they were a member of a subversive organization
  2. they have knowledge of the illegal aims of the organization
  3. they have specific intent to further those illegal aims
32
Q

When can public employees be disciplined or fired for speech

A
  1. the speech is not a matter of public concern
  2. the speech is potentially disruptive of the workplace (even if speech is on a matter of public concern)
33
Q

When can school-children be disciplined for speech?

A

If the speech is potentially disruptive

34
Q

When can prisoner’s speech be restricted?

A

Prisoners’ speech may be restricted by a regualtion taht is rationally related to a legitimate penological objective

35
Q

Can speech be restrained prior to it being released?

A

Government cannot suppress or restrain speech in advance of its publication or utterance and there is a strong presumption that prior restraints are illegal

36
Q

What is breadth requirement regarding speech regulations

A

Regulations of speech must be narrow and specific, and must not be overly broad as to have a “chilling effect” on protected speech

37
Q

What are specificity requirements regarding speech regulations ?

A

Regulations of speech must not be vague such that one must be able to determine the type of speech covered by a given regulation

38
Q

What types of press mediums can be regulated

A

Radio and television broadcasting can be more closely regulated than print media or a private individual
-cable television receives protection somewhere between that of broadcast TV and newspapers and citizens

39
Q

What level of scrutiny is applied regarding content-neutral regulations imposed on cable TV operators?

A

Intermediate scrutiny

40
Q

Can government ban offensive sexual content and speech on broadcast TV?

A

Yes

Con Law (16 decks)

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