1st Amendment Flashcards
(30 cards)
How might a law prohibiting acts under the 1st Amendment be Unconstitutional on its face?
— Prior Restraint
— Vagueness
— Over-broad
— Unfettered Discretion
What are the safeguards for imposing a prior restraint on a person’s 1st Amendment right?
— Standards must be narrowly drawn and definite
— The Restraining body must promptly seek an injunction; AND
— There must be a prompt and final judicial determination of the validity of the restraint.
If a person fails to comply with a prior restraint order, can they stop challenge it after as unconstitutional?
No, proper court orders must be complied with until they are vacated or overturned.
When is a law prohibiting free speech unconstitutionally Vague?
When no reasonable person could tell what speech is permitted and what speech is prohibited
Laws prohibiting fighting words are what?
Unconstitutional
But that’s not the case for laws prohibiting true threats (i.e. causing a person to fear harm)
Content-based restrictions on speech must meet what level of scrutiny?
Strict Scrutiny
What are the two types of contents-based laws?
Subject matter restrictions (application of the law depends on the topic of the message)
AND
Viewpoint restrictions (application of the law depends on the ideology of the message).
If a content-neutral law burdens speech, it must meet what level of scrutiny?
Intermediate Scrutiny
Can the government regulate symbolic speech?
Yes, if there is an important interest
Unrelated to suppression of the message
And the impact on the communication is no greater than necessary to achieve the government purpose.
What are 3 examples of symbolic speech?
Flag burning
Burning a cross (provided that it’s not intended to threaten)
Contribution limits in election campaigns
Certain types of speech are less protected by the government, for example: incitement of illegal activity. When can the government punish such speech?
There is a substantial likelihood of imminent illegal activity; AND
If the speaker intends to cause it.
What is the three-part Test for obscene and sexually-orientated speech?
The material must appeal to the PRURIENT INTEREST (excites lustful or illicit thoughts)
Material is PATENTLY OFFENSIVE
Taken as a whole, the material lacks serious redeeming, artistic, literary, political or scientific value.
What can the government recover if a business is convicted of violating obscenity laws?
It can seize the business’s assets
Profane and indecent speech is generally protected under the 1st Amendment, except…?
It’s it’s broadcast over media that goes into the home
In schools
Commercial Speech is or is not protected by the first amendment?
It is
Government regulation of commercial speech must meet what level of scrutiny?
Intermediate Scrutiny, so regulation must meet a substantial government interest, the regulation actually advances that interest and its narrowly tailored to serve such interest.
Which commercial speech is not protected by the 1st Amendment?
False or misleading commercial speech or true speech that inherently risks deception.
Which of these can the government prohibit:
(1) professionals from advertising or practising under a trade name.
(2) attorneys making in-person solicitations of their clients
(3) accountants making in-person solicitations of their clients.
The government can prohibit (1) and (2), but not (3)
Can defamatory language be restricted, thereby curtailing a person’s 1st Amendment right?
Yes, but it has to meet certain requirements
For defamation involving a PUBLIC OFFICIAL or a PUBLIC FIGURE, when can the plaintiff recover presumed damages for defamation?
Where they can prove:
— Falsity of the statement; AND
— Actual Malice (speaker knew statement was false and acted with reckless disregard to the truth)
For defamation involving a PRIVATE FIGURE, but a matter of PUBLIC CONCERN, when can the plaintiff recover for defamation?
The plaintiff can recover when they can prove:
— Negligence
— Actual injury
— Falsity of the statement
What further step would the private figure who was suing for defamation for a matter of public concern need to show if they want to recover presumed/compensatory damages?
Rather than negligence, they need to show actual malice.
For defamation involving a PRIVATE FIGURE, but a matter of PRIVATE CONCERN, when can the plaintiff recover for defamation?
Need to prove:
— Negligence
— Burden on D to prove truth
Speech by a government employee who is on the job and performing their duty is: (1) still protected by the 1st Amendment; or (2) is not protected by the 1st Amendment?
NOT protected
