1st Amendment Freedoms Flashcards
(31 cards)
Freedom of Speech Writing Approach (1) PUVO
- Can the law be invalidated with a facial challenge?
a. Prior Restraint
b. Unfettered Discretion
c. Vagueness
d. Overbreadth
Freedom of Speech Writing Approach (2)
- Is it a content based restriction?
Freedom of Speech Writing Approach (3) COIF
- Are there any exceptions that allow for content based restriction?
a. Commercial Speech
b. Obscenity
c. Incitement
d. Fighting Words
Freedom of Speech Writing Approach (4)
- Does the law restrict the time, place, or manner of speech?
Freedom of Speech Writing Approach (5) PNDLR
- If YES to time, place, manner, what is the forum where the speech is being regulated?
a. Public Forum
b. Non Public Forum
c. Designated Public Forum
d. Limited Public Forum
e. Private Property
Freedom of Speech Writing Approach (6)
- Is there any conduct that intends to communicate a message i.e. symbolic speech?
Freedom of Speech
The 1A prohibits congress from abridging the freedom of speech. This prohibitions is applicable to the states through the 14A. Here,
Facial Challenge - Prior Restraint
A PR restricts speech before it occurs, rather than punish it afterwards. The G must show some special societal harm would result otherwise. Here,
Facial Callenge - Unfettered Discretion
A regulation cannot give officials broad discretion over speech issues. There must be defined standards for applying the law. If the statute gives unbridles discretion then it is void on its face and the speaker need not even apply for a permit. Here,
Facial Challenge - Vagueness
A law is vague if a reasonable person cannot tell what speech is prohibited and what is allowed. Here,
Facial Challenge - Overbreadth
A law if overbroad if the law regulates both protected and unprotected speech. Here,
Content Based Regulation
Restrictions on the content of speech must be necessary to achieve a compelling government interest and narrowly tailored. However, there are certain types of speech that are not protected under the 1A. Here,
Content Based - Obscenity
The G may regulate obscenity. Speech is obscene if it 1) appeals to the prurient interest in sex, 2) is patently offensive, and 3) lacks serious literary, scientific, artistic, or political value. Here,
Content Based - Obscenity_Child Pornography
To protect minors, the G may prohibit the possession and sale of child pornography.
Content Based - Obscenity_Zoning
G may use zoning to regulate obscenity-type speech or conduct. Here,
Content Based - Commercial Speech
Commercial speech only has limited 1A protection. For the G to limit commercial speech, it must 1) have a substantial G interest, 2) the law/regulation must directly further that interest, and 3) is narrowly tailored to serve that purpose. Here,
Commercial speech that is false or misleading or concerns illegal activity is unprotected commercial speech and may be regulated. Here,
Content Based - Incitement
The G may punish speech if there is a substantial likelihood the speech will bring about imminent illegal activity and 2) the speech is aimed at causing imminent illegality. Here,
Note: An Incitement statute is very difficult to satisfy. It must be VERY narrowly tailored.
Content Based - Fighting Words
G may punish speech if it is likely to cause an immediate violent response against the speaker. Here,
Note: Fighting words statutes are unconstitutionally vague and overbroad.
Content Neutral Regulation/Time, Place, Manner
A content neutral regulation does not forbid communication of specific ideas but rather regulates the conduct associated with speaking such as the time, place, or manner of the speech. To determine the appropriate test, we must first determine the forum. Here,
Content Neutral - Public Forum
Public forums are G property that the G is constitutionally required to make available for speech. To regulate speech in a public forum, the regulation must be 1) content neutral, 2) narrowly tailored to serve an important government G interest, and 3) leave open alternative means of communications. Here,
Content Neutral - Non Public Forum
NPF are properties that are not open to the public, such as military bases, sidewalks outside of post offices, and prisons. To regulate speech in a NPF, the regulation must be 1) viewpoint neutral and 2) reasonably related to a legitimate G interest. Here,
Content Neutral - Designated Public Forum
A DPF is a public property not traditionally open to speech related activities, but which the G has held open for such activities in the past, such as a public classroom. To regulate speech in a DPF, the regulation must be 1) content neutral, 2) narrowly tailored, 3) serve an important G interest, and 4) leave open alternative means of communication. Here,
Content Neutral - Private Property
There is no first amendment right of free speech on private property. Here,
Symbolic Speech
Speech can also be symbolic acts undertaken to communicate an idea. The G may regulate symbolic speech so long as it has 1) an important interest in the regulation that 2) is independent of the speech and 3) the limitation on the speech is not greater than necessary. Here,
i.e. Peyote example
