1st Am Flashcards
(25 cards)
Which regulation, content-based OR conduct-based, is more likely to be held unconstitutional?
Content-based! In general, a reg seeking to forbid communication of SPECIFIC IDEAS (content-based) is LESS likely to be upheld than regulation of CONDUCT incidental to speech
What are the scrutiny stds for contest-based and content-neutral restrictions, respectively?
Content based restrictions on speech must meet STRICT SCRUTINY
Content-NETUTRAL restrictions(i.e. applies to ALL speech regardless of viewpt) burdening speech generally need only meet INTERMEDIATE SCRUTINY
What are the 2 alternative ways of finding that a law is content-based?
1) Subject matter restrictions: application of the law depends on the topic of the msg
2) Viewpt restrictions: application of the law depends on the IDEOLOGY of the speech
What is “prior restraint” and the level of scrutiny that it must meet?
Prior restraint = stopping speach BEFORE it occurs
Ct orders surpressing speech MUST meet STRICT SCRUTINY
Gag orders on the press to prevent pejudicial PRE-trial publicity are NOT allowed
Must a prior restraint challenger follow a ct Gag Order?
YES! Procedurally proper ct orders MUST be complied w/ UNTIL they are VACATED or OVERTURNED
A person who violates a ct order is BARRED from later challenging it
What are 3 requirements that must be met before the gov’t can require a license for speech?
1) There has to be an IMPORTANT reason for licensing
2) There must be CLEAR CRITERIA, leaving almost NO discretion to the licensing authority
3) There must be PROCEDURAL SAFEGUARDS such as prompt determination of requests for licenses and judicial review of license denials
What is the std for a speech regulation being struck down for vagueness OR overbreadth?
1) A law is unconstitutionally VAGUE if a reasonable person CANNOT tell what speech is prohibited and what is allowed
E.g. fighting words are NOT protected speech, BUT statutes attempting to punish the use of such words are often found to be VOID for VAGUENESS
2) A law is unconstitutionally OVERBROAD if it regulates subtl MORE speech than the constitution allows to be regulated
What is the test for defamation?
If π is PUBLIC OFFICIAL OR FIGURE, π has to prove malice (knowledge that stmt is false OR reckless disrgard as to its truth) and the falsity of the statement by clear and convincing evidence to get damages
If π is PRIVATE PERSON AND matter of PUBLIC CONCERN, π has to prove at least negligence as to stmts falsity to get compensatory damages for actual injury. To recover presumed or punitive damages π must show actual malice.
If πis PRIVATE PERSON AND matter NOT of public concern, then π can recover presumed or punitive damages w/o showing actual malice. Burden may be on ∆to prove truth (unlike other 3 scenarios)
NOTE: Liability of IIED for defamatory speech must meet defamation standards for 1st am.
When can the gov’t regulate symbolic speech?
The gov’t may regulate CONDUCT that communicates (symbolic speech) IF:
1) it has an IMPORTANT interest UNRELATED to the supression of the msg; AND
2) the impact on communication is NO greater than NECESSARY to achieve the gov’t goal
Gov’t ALLOWED to regulate…
Draft card burning (b/c of potential for national emergency)
Nude dancing
Contribution ltds to individual candidate campaigns
Gov't NOT ALLOWED to regulate... Flag burning Cross burning (AS LONG AS not done to threaten/intimidate) Overall EXPENDITURE limits in campaigns (gov't cannot ltd the amt a person/corp/union spends to get a candidate elected, SO LONG AS the expenditures are indpendent of the candidate and are not disguised)
Is anonymous speech protected by the 1st Am?
YES! BUT NOTE: A state’s interest in promoting transparency and accountability in elections is SUFFICIENT to justify public disclosure of the names/addys of persons who sign ballot petitions
Is speech BY the gov’t restricted by the 1st Am?
Speech BY the gov’t CANNOT be challenged as violating the 1st Am
Gov’t speech AND gov’t FUNDING of speech will be upheld SO LONG AS it is rationally related to a legitimate gov’t interest (rational basis)
Spending programs cannot limit 1st Am. actv outside the scope of the spending program itself
What5 categories of speech are UNPROTECTED p/t the 1st Am?
REMEMBER: CONTENT-based restrictions of speech must meet STRICT SCRUTINY (law is NECESSARY to achieve a COMPELLING gov’t interest)
Regulation of the following is COMPELLING…
1) Incitement of illegal activity. The gov’t may punish speech IF (i) there is a SUBSTL likelihood of imminent illegal activity;AND (ii) the speech is directed to causing such illegality
2) Obscenity
3) Defamatory speech
4) Fighting words: true threats or personally abusive actions (cross burning to intimidate)
ALSO REMEMBER: CONTENT-neutral restrictions of speech must meet INTERMEDIATE SCRUTINY (law is SUBSTL RELATED to an IMP gov’t interest) Regulation of the following is IMPORTANT…
5) SOME commercial speech: Advertising for illegal activity; OR false/deceptive ads are NOT protected EVEN true commercial speech that inherently risks deception can be prohibited (e.g. using certain trade names) under intermediate scrutiny. Reg of comm speech must be narrowly tailored.
What are the 3 reqs for speech to be deemed obscene?
Speech is obscene IF…
1) the material appeals to the prurient interest(“shameful or morbid interest in sex”)(based on COMMUNITY std);
2) the material must be PATENTLY offensive (based on COMMUNITY std); AND
3) the material LACKS serious redeeming artistic, literary, poltical OR scientific value (based on NATIONAL std)
NOTE: The gov’t MAY use zoning ordinances to regulate the number/location of adult bookstores/movie theaters
NOTE: CHILD PORN (i.e. children in the production of the material) may be COMPLETELY banned, even if it’s NOT obscene
NOTE: The gov’t CAN’T punish the PRIVATE possession of obscene materials; BUT the gov’t CAN punish the private possession of CHILD PORN
NOTE: The gov’t may seize the assets of businesses CONVICTED of violating obscentity laws
NOTE: PROFANE/INDECENT speech is generally PROTECTED by the 1st Am; EXCEPT… on free, over-the-air broadcast media (TV/radio); AND in schools
May the gov’t restrict speech by gov’t EMPLOYEES?
YES! Speech by gov’t emps on the job in the performance of their duties is NOT protected by the 1st Am
May the gov’t impose liability for TRUTHFUL reporting of LEGALLY obtained gov’t information?
NO! A state may NOT create liability for the TRUTHFUL reporting of information that was LEGALLY obtained from the gov’t records (e.g. a rape victim’s identity obtained lawfully by a reporter)
Can the media be held liable for broadcasting ILLEGALLY obtained information?
NO, SO LONG AS… (i) the media did not PARTICIPATE in the illegality; AND (ii) it involves a matter of public importance
What is the ONLY instance where the public has a 1st Am right to attend a gov’t proceeding and have access to govt papers?
Criminal trials and pre-trial proceedings: This right can ONLY be restricted by sanction that is NARROWLY TAILORED to further an interest of the HIGHEST order (e.g. to protect children who are victims of sex offenses). Otherwise, the gov’t MAY restrict its own dissemination of information.
What is the std for regulating speech in public OR designated public forums?
Public forums = gov’t properties that the gov’t is constutionally req’dto make available for speech
Designated public forums = gov’t properties that the gov’t could close off to speech, but chooses VOLUNTARILY to open to speech
Std = Gov’t can pass “time, place or manner” regulations, IF they…
(i) are content-neutral (subject matter AND viewpt);
If NOT content neutral, reg must meet STRICT SCRUTINY
(ii) are narrowly tailored to serve an IMPORTANT gov’t interest
Narrow tailoring does NOT mean that it has to be least restrictive alternative
Permit fee reqs for parades/demonstrations ARE unconst if city officials have DISCRETION in setting the amt of the fee
(iii) leave open an alternative channel of communication
What is the std for regulating speech in ltd public OR non-public forums?
Ltd public forums = gov’t properties that are ltd to certain groupsORdedicated to discussion of only some subjects
Non-public forums = gov’t properties that the gov’t can constitutionally close off to speech (e.g. Military bases, Areas outside prisons, Public schools, Sidewalks in front of POST OFFICE, Airports (but can’t prohibit distribution of literature))
Std = Gov’t CAN regulate speech to reserve the forum for its intended use, BUT regs must be…
(i) viewpt neutral (don’t have to be subject matter neutral!); AND
(ii) reasonably related to a legitimate gov’t purpose (rational basis)
What is the std for regulating speech in private forums?
There is NO 1st Am right of access to private property for speech purposes (e.g., a shopping mall)
What is the scrutiny std for freedom of association?
Laws that PROHIBIT or PUNISH group membership must meet STRICT SCRUTINY
Laws that require DISCLOSURE of group membership where such disclosure would chill association MUST meet strict scrutiny
What 3 requirements must be met in order to punish based on group membership?
Assuming strict scrutiny is met, to punish membership in a group it must be proven that the person…
(i) is ACTIVELY affiliated w/ the group;
(ii) has KNOWLEDGE of the group’s illegal activities; AND
(iii) has SPECIFIC INTENT of furthering those illegal activities or objectives
Does freedom of association protect the private right to discriminate?
NO!
EXCEPTIONS: (i) “Intimate association” (e.g. a small dinner party), (ii) where discrimination is integral to the expressive activities of the group (e.g. excluding black people from the KKK)
What is the Free Exercise Cl?
Prohibits gov’t from punishing someone on the basis of her religious beliefs
The gov’t may NOT deny benefits to individuals who quit their jobs for religious reasons
The gov’t may not hold religious institutions liable for choices related to ministers
NOTE: the Free Exercise Cl CANNOT be used to challenge NEUTRAL laws of general applicability (e.g. Oregon law prohibiting peyote challenged by native americans upheld bc neutral)
