1st Amendment part 1 - Free Speech Flashcards
What issues arise under first amendment?
- Freedom of speech (and press)
- Freedom of Association
- Freedom of Religion (Free Exercise, Establishment Clause)
What does the “Free Speech Clause” restrict?
The free speech clause restricts government regulation of private speech.
What is the rule regarding speech by government OR funding of private speech by government?
It DOES NOT implicate the 1st amendment, and therefore does NOT get the various levels of regulation of private speech.
It is upheld if “rationally related to a legitimate government interest”.
What are the limitations on speech by government OR funding of private speech by government?
- Spending programs may NOT limit 1st amendment activities outside scope of funding
- If private speech is funded, it must do so on a viewpoint neutral basis
With regards to “Free Speech” - what are “content” and “conduct” regulations?
“Content regulations” - regs forbidding communication of specific ideas
“Conduct regulations” - regs of conduct associated with speaking. Ex –> time, sound level etc.
NOTE: Different standards of scrutiny apply to the different types of regulations
With regards to “Free Speech” - what standard of review applies to “content regulations”?
- content regulations –> STRICT SCRUTINY:
1. must be necessary;
2. to achieve a COMPELLING gov interest - Content neutral speech regulations are subject to INTERMEDIATE SCRUTINY:
1. must advance IMPORTANT interests unrelated to the restriction of speech; AND
2. must be NARROWLY TAILORED (ie..must not burden substantially more speech than is necessary) to accomplish that purpose
With regards to “Free Speech” - what standard of review applies to “conduct regulations” (time/manner/place restrictions)?
This will depend on whether it’s a
- public forum/designated public forum; OR
- limited public forum/non public forum
What limitations apply to ALL limitations on speech (whether content or conduct)?
- Overbroad regulation invalid
- Void for vagueness
- Unfettered discretion
What is the rule regarding “overbroad speech regulations”?
If it’s overbroad, it’s facially invalid
What is the rule regarding “void for vagueness speech regulations”?
If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate due process.
NOTE: This is interpreted strictly when 1st amendment is involved.
What is the rule regarding “free speech” and “unfettered discretion”?
A regulation cannot give officials broad discretion on speech issues.
- if a statute gives licensing officials unbridled discretion, it is void on its face, and speakers need not even apply for a permit
Does “freedom of speech” include freedom not to speak?
YES.
Thus, gov cannot force people to salute the flag, or display messages with which they disagree.
What is a “public forum” or “designated public forum”?
“public forum” - public property that has historically been open to speech related activity (streets, sidewalks, public parks, internet)
“designated public forum” - public property that has not historically been open to speech related activity, but that the government has thrown open for such activities on a permanent or limited basis by practice or policies
Example –> school rooms that are open after-school for social, civic, or recreation groups
What is the standard of review for time/place/manner restrictions in “public forums” and “designated public forums”?
Gov may regulate speech in PUBLIC FORUMS and DESIGNATED PUBLIC FORUMS with reasonable time, place, and manner restrictions that:
- Are content neutral (subject matter and viewpoint neutral);
- Narrowly tailored to serve an IMPORTANT government interest (but not necessarily least restrictive);
- Leave open ALTERNATIVE channels of communication
What is a “limited public forum” or “non-public forum”?
“Limited public forum” - property not historically linked w speech and assembly, but opened for a specific speech activity (for example, debate at school).
“Non-public forum” - gov property not linked w speech (example –> military base, schools while classes are in session, government workplaces)
What is the standard of review for time/place/manner restrictions in “limited public forums” and “non-public forums”?
Gov can regulate speech to RESERVE THE FORUM FOR ITS INTENDED USE, provided that regs are:
- viewpoint neutral;
- reasonably related to a legitimate government purpose
What is the general rule regarding “unprotected speech”?
Restrictions on content generally must be NECESSARY to achieve a COMPELLING state interest (strict scrutiny).
Courts have ruled that gov has a compelling interest in regulating the following:
- Inciting Imminent Lawless Action
- Fighting words
- Obscenity
- Defamatory
- Some commercial speech
What is the rule regarding “free speech” and “inciting imminent lawless action”?
Speech can be burdened if it creates a CLEAR AND PRESENT danger of IMMINENT LAWLESS ACTION.
Must be shown that:
- imminent illegal conduct is likely; AND
- speaker intended to cause it
What is the rule regarding “free speech” and “fighting words” ?
True threats are not protected by 1st amendment (Example –> burning of cross to intimidate)
Speech can also be burdened if it constitutes “fighting words” - personally abusive words that are likely to incite immediate physical retaliation in an average person.
NOTE –> Mere annoyance is not enough
NOTE –> statutes cannot punish fighting words that aren’t viewpoint neutral (for example, fighting words that insult on the basis of race, religion, or gender)
NOTE –> on exam, most laws on this issue will be invalid as overbroad
What is the rule regarding “free speech” and “obscenity”?
Obscenity is not protected speech.
When is speech obscene?
- appeals to prurient interest in sex (community standard);
- is patently offensive (community standard);
- Lacks serious value (literary, artistic, political, scientific) (National standard)
What is the special rule regarding obscenity and minors?
Gov CAN adopt specific definition of obscenity for materials sold to minors (even if it might not be obscene to an adult audience).
HOWEVER –> gov cannot ban item for adults, simply bc it is obscene for kids
What is the rule re: pictures of minors versus simulated pictures of minors?
May ban –> sale/distribution of visual depictions of sexual conduct involving minors
May NOT BAN –> depictions that APPEAR to be minors
What is the rule re: speech and “land use regulations”?
Land use (zoning) reg MAY limit the size or location of adult entertainment establishments IF the reg is designed to reduce the secondary effects of such businesses (ie…rise in crime rates, drop in property values).
May not –> ban such establishments altogether
