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Conlaw II > Freedom of Speech > Flashcards

Freedom of Speech Flashcards

1
Q

2 categories of laws restricting speech

FRAMEWORK // METHODOLOGY

A
  1. content-based = strict scrutiny

2. content-neutral = intermediate scrutiny

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2
Q

content-based

FRAMEWORK // METHODOLOGY

A

= applies to some speech differently

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3
Q

subject matter restriction

FRAMEWORK // METHODOLOGY

A

application of law depends on TOPIC of speech

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4
Q

viewpoint restriction

FRAMEWORK // METHODOLOGY

A

application of law depends on IDEOLOGY of the message

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5
Q

content-neutral

FRAMEWORK // METHODOLOGY

A

= applies to all speech the same

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6
Q

prior restraint

PRIOR RESTRAINTS // METHODOLOGY

A

= order from administrative system that stops speech before it occurs

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7
Q

prior restraint presumption

PRIOR RESTRAINTS // METHODOLOGY

A

strong presumption AGAINST prior restraints

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8
Q

2 content-based types

FRAMEWORK // METHODOLOGY

A
  1. subject matter restriction

2. viewpoint restriction

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9
Q

3 prior restraints

PRIOR RESTRAINTS // METHODOLOGY

A
  1. injunction
  2. licensing or permit systems
  3. gov physically seizes means of speech (like printing press)
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10
Q

constitutional amendment

FREEDOM OF SPEECH

A

1st Amendment

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11
Q

court order preventing speech - scrutiny

PRIOR RESTRAINTS // METHODOLOGY

A

strict scrutiny

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12
Q

licensing or permit systems - rule

PRIOR RESTRAINTS // METHODOLOGY

A

gov can require licensing/permit ONLY IF

  1. it has a good reason for licensing AND
  2. there are clear criteria that leaves almost no discretion to the licensing authority AND
  3. there are procedural safeguards (such as prompt termination of license requests and judicial review of license denials)
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13
Q

licensing or permit systems - procedural safeguard examples

PRIOR RESTRAINTS // METHODOLOGY

A
  • prompt termination of license requests

- judicial review of license denials

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14
Q

vagueness

VAGUENESS & OVERBREADTH // METHODOLOGY

A

= if a reasonable person cannot tell what speech is prohibited and what is allowed

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15
Q

overbreadth

VAGUENESS & OVERBREADTH // METHODOLOGY

A

= regulates substantially more speech than constitution allows to be regulated

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16
Q

fighting words laws

VAGUENESS & OVERBREADTH // METHODOLOGY

A
  • fighting words laws are ALWAYS unconstitutionally vague and overbroad
  • BUT fighting words are not technically constitutionally protected
    (SC has never upheld fighting words regulation since 1972, but also never overruled precedent)
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17
Q

fighting words

VAGUENESS & OVERBREADTH // METHODOLOGY

A

4 elements

  1. provocative personal insult
  2. direct tendency to cause IMMEDIATE violence
  3. face-to-face utterance
  4. directed at the individual
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18
Q

symbolic speech

SYMBOLIC SPEECH // METHODOLOGY

A

= conduct that communicates a message

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19
Q

o’brien test

SYMBOLIC SPEECH // METHODOLOGY

A

government can regulate symbolic speech IF

  1. regulation is within the constitutional power of gov
  2. it furthers an important gov interest
  3. the gov interest is unrelated to suppression of speech
  4. the incidental burden on speech is no greater than necessary
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20
Q

example - flag-burning v. draft card-burning

SYMBOLIC SPEECH // METHODOLOGY

A

flag-burning = constitutionally-protected speech
v.
draft card-burning = NOT protected speech

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21
Q

example - nude dancing

SYMBOLIC SPEECH // METHODOLOGY

A

nude dancing = NOT protected speech

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22
Q

example - burning a cross

SYMBOLIC SPEECH // METHODOLOGY

A

cross-burning = constitutionally-protected speech UNLESS done with intent to threaten

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23
Q

political contributions

SYMBOLIC SPEECH // METHODOLOGY

A
  • gov MAY limit the amount a person may give to a particular candidate
  • gov MAY NOT limit the amount a person or group may spend on an election or referendum
  • gov MAY NOT limit the amount a persons spends on his or her own campaign
  • gov MAY NOT limit a corporation’s right to engage in unlimited expenditures
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24
Q

anonymous speech

SYMBOLIC SPEECH // METHODOLOGY

A

PROTECTED

= right to speech without identifying yourself

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25
Q

government speech

SYMBOLIC SPEECH // METHODOLOGY

A

free speech clause of 1st amendment CANNOT be used to challenge GOVERNMENT speech

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26
Q

general rule

INCITEMENT OF ILLEGAL ACTIVITY // UNPROTECTED OR LESS-PROTECTED

A

UNPROTECTED

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27
Q

modern test

INCITEMENT OF ILLEGAL ACTIVITY // UNPROTECTED OR LESS-PROTECTED

A

government can punish speech if

  1. substantial likelihood of imminent illegal activity AND
  2. if speech is directed at causing imminent, illegal activity
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28
Q

6 types

UNPROTECTED OR LESS-PROTECTED

A
  1. incitement of illegal activity
  2. obscenity
  3. child porn
  4. commercial speech
  5. defamation
  6. private information
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29
Q

miller test

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

government can punish speech if

  1. the average person applying contemporary community standard would find the material, taken as a whole, appeals to prurient interest AND
  2. material must be patently offensive under the law prohibiting obscenity AND
  3. taken as a whole, material must lack serious redeeming social value
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30
Q

miller test - prurient definition

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

= shameful or morbid interest in sex

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31
Q

miller test - prurient standard

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

determined by LOCAL/COMMUNITY standard

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32
Q

miller test - social value definition

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

serious artistic, literary, political, or scientific value

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33
Q

miller test - social value standard

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

determined by NATIONAL standard, not local regard

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34
Q

zoning of adult stores

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

rule = erogenous zoning is permissible

AKA local government may use zoning ordinances to regulate the location of adult movie/book stores

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35
Q

specific rules

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A
  1. zoning of adult stores
  2. child porn
  3. private possession
  4. business asset seizure
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36
Q

child porn

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

gov may prohibit child porn (child MUST be included in production)
EVEN IF it is not obscene

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37
Q

private possession

CHILD PORN // UNPROTECTED OR LESS-PROTECTED

A

gov cannot punish private possession of obscene materials EXCEPT child porn

38
Q

business asset seizure

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

gov may seize assets of businesses convicted of obscenity law violations

39
Q

profane and indecent language - rule

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

generally protected by 1st amendment

40
Q

profane and indecent language - exceptions

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A
  1. over broadcast media
  2. in schools
  3. commercial speech
41
Q

profane and indecent language over broadcast media

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

can prohibit profanity over FREE TV

  • NOT cable
  • NOT internet
42
Q

profane and indecent language in schools

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

can prohibit student speech

43
Q

profane and indecent

COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED

A

AKA advertising
false and deceptive advertising AND advertising of illegal activities = not protected by 1st amendment
(EVEN true ads that inherently RISK deception = not protected)

44
Q

ads that inherently risk deception

COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED

A

RULE = even true ads that inherently RISK deception = not protected

EXAMPLES

  1. states may prohibit professionals from advertising/practicing under trade names
  2. states may prohibit attorney in-person solicitation of clients for profit
45
Q

in-person solicitation of clients

COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED

A

states may prohibit attorney in-person solicitation of clients for profit
BUT states may NOT prohibit accountants from engaging in in-person solicitation of clients for profits

AKA accuracy not advocacy

46
Q

scrutiny

COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED

A
  • other government regulation of commercial speech is allowed IF intermediate scrutiny is met
  • government regulation doesn’t have to use least restrictive alternative BUT does have to be narrowly tailored
47
Q

rule

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

1st amendment limits ability of state to allow recovery for defamation

48
Q

public official

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

if P is public official OR running for public office
= can recover only by proving by clear and convincing evidence that
1. speaker knew statement was false OR acted in reckless disregard of truth (actual malice) AND
2. that statement WAS false

49
Q

public figure

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

if P is public figure = same rules apply as for public official
= can recover only by proving by clear and convincing evidence that
1. speaker knew statement was false OR acted in reckless disregard of truth (actual malice) AND
2. that statement WAS false

50
Q

private figure

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

if P is a private figure AND speech involves a matter of public concern
= must prove
1. falsity of statement AND
2. negligence on the part of the speaker

51
Q

public figure - definition

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

SC says public figures are those who thrust themselves into limelight, likely to have access to media

52
Q

private figure - definition

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

SC never defined private figure or matter of public concern

public figure = probably someone who isn’t public?

53
Q

presumed damages

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

= automatic statutorily-defined damages

54
Q

private figure - damages

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

if speech involves matter of public concern = punitive/presumed damages IF proof of actual malice

if speech doesn’t involve matter of public concern = actual malice not required for presumed/punitive damages

55
Q

recovery for IIED

DEFAMATION // UNPROTECTED OR LESS-PROTECTED

A

recovery for tort of IIED

  1. must meet requirement for defamation liability AND
  2. cannot be for speech otherwise protected by 1st amendment
56
Q

liability for reporting

PRIVACY // UNPROTECTED OR LESS-PROTECTED

A

state may not allow liability from

a. truthful reporting of
b. info lawfully obtained
c. from gov records

57
Q

liability for broadcast

PRIVACY // UNPROTECTED OR LESS-PROTECTED

A

media cannot be held liable for broadcast of tape illegally-intercepted illegally-recorded call AS LONG AS

  1. media didn’t participate in illegality AND
  2. conversation involves a matter of public concern
58
Q

government self-restriction

PRIVACY // UNPROTECTED OR LESS-PROTECTED

A

gov may restrict ITS OWN dissemination of information so as to protect privacy
WITH ONE EXCEPTION = criminal trials

59
Q

overview/context

UNPROTECTED OR LESS-PROTECTED

A

unprotected/less-protected examples = exception to general rule that content-based restrictions must meet strict scrutiny

60
Q

kind of SC approach

PLACES AVAILABLE FOR SPEECH

A

categorical approach

  1. public forums
  2. designated public forums
  3. limited public forums
  4. non-public forums
61
Q

definition

PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

= government property that government is constitutionally required to make available for speech

62
Q

examples

PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A
  • sidewalks

- parks

63
Q

rule

PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

government may regulate speech in public forums BUT has to meet certain requirements

  1. if regulation is subject-matter and viewpoint neutral,
    = intermediate scrutiny AND
    a. must be time/place/manner restriction
    b. that serves important government interest and
    c. leaves open adequate alternate places
  2. if regulation is NOT subject-matter and viewpoint neutral
    = strict scrutiny
64
Q

least restrictive alternative or narrowly tailored?

PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

gov regulation of speech in public forums doesn’t have to use least restrictive alternative BUT must be narrowly tailored

65
Q

parade/demonstration fees

PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

fee requirements for parades/demonstrations are NOT permitted IF gov officials have discretion in setting amount of fee

66
Q

definition

DESIGNATED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

= gov property that gov could close to speech but voluntarily choose to open to speech

67
Q

rule

DESIGNATED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

identical to public forums (may regulate if meets certain requirements)

  1. if regulation is subject-matter and viewpoint neutral,
    = intermediate scrutiny AND
    a. must be time/place/manner restriction
    b. that serves important government interest and
    c. leaves open adequate alternate places
  2. if regulation is NOT subject-matter and viewpoint neutral
    = strict scrutiny
68
Q

examples

DESIGNATED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

public school on nights and weekends

69
Q

definition

LIMITED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

= gov opens place to speech but only some speakers and some topics

70
Q

rule

LIMITED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

allowed AS LONG AS viewpoint neutral and reasonable

71
Q

definition

NON-PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

= gov properties that gov can and does close to speech

72
Q

examples

NON-PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A
  • military bases
  • areas outside prisons/jails
  • sidewalks outside post office
  • airports
73
Q

rule

NON-PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A

identical to limited public forums =

allowed AS LONG AS viewpoint neutral and reasonable

74
Q

airport distribution/solicitation

NON-PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH

A
  • gov cannot prohibit distribution of literature in airports

- gov can prohibit solicitation of $ in airports

75
Q

use of privately-owned shopping centers

PRIVATE FORUMS // PLACES AVAILABLE FOR SPEECH

A

NO FIRST AMENDMENT RIGHT to use privately-owned shopping centers for speech purposes

76
Q

miller test - how to determine patently offensive

OBSCENITY // UNPROTECTED OR LESS-PROTECTED

A

material must be patently offensive under the law prohibiting obscenity =

  1. any law must delineate what is patently offensive AND
  2. material must fit under this definition
77
Q

protection / scrutiny

FALSE STATEMENTS // UNPROTECTED OR LESS-PROTECTED

A

non-defamatory falsehoods = protected by strict scrutiny

78
Q

central hudson test

COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED

A

PART 1 = is the commercial speech misleading or related to illegal activity?
yes = unprotected
no = go to part 2

PART 2 = for speech to be restricted

  1. gov interest must be SUBSTANTIAL
  2. restriction must DIRECTLY advance state’s interest
  3. the speech is NOT MORE EXTENSIVE THAN NECESSARY to serve the interest that supports it
79
Q

prohibitions on congress

FIRST AMENDMENT

A

1st amendment prohibits congress from

  1. Making any law abridging the freedom of speech or the press
  2. Making any law abridging the freedom of religion (Free Exercise Clause)
  3. Establishing a religion (Establishment Clause)
80
Q

sufficient gov interest examples

PRIOR RESTRAINT

A
  1. National security (harm must be more than theoretical)
  2. Persevering fair trial (only if only sure way of preserving fair trial)
  3. Contractual agreements
  4. Military circumstances
  5. Obscenity
81
Q

taxing the press

MISCELLANOUS RULES

A

The press

  • may be subject to general business regulations and taxes, but
  • may not be singled out for special taxes
82
Q

loyalty oaths

MISCELLANOUS RULES

A

gov CAN require a person to
a. swear to support the constitutions (state and federal) or
b. swear to oppose unlawful attempts to overthrow the government
to
a. obtain government employment or
b. become a member of the bar

gov CANNOT require a person to

  • “support the flag” or
  • swear not to “advocate” an overthrow of the government as an abstract idea
83
Q

fairness doctrine

FREEDOM OF THE PRESS

A

NO LONGER ENFORCED
= due to the limited number of frequencies available,
- broadcasters have a special privilege and thus a special responsibility
- to give suitable time to matters of public interest AND
- to present a suitable range of programs
= radio and television broadcasting may be more closely regulated than the press

84
Q

fairness doctrine rationale

FREEDOM OF THE PRESS

A

= paramount right is the right of viewers and listeners to receive information of public concern, rather than the right of broadcasters to broadcast what they please

85
Q

fairness doctrine application

FREEDOM OF THE PRESS

A

SC has upheld FCC orders requiring a radio station to offer free broadcasting time

  1. to opponents of political candidates or views endorsed by the station AND
  2. to any person who has been personally attacked in the course of a broadcast for a reply to the attack
86
Q

gov funding of speech rule

FREEDOM OF SPEECH

A

gov funding may be content-based, as long as it’s viewpoint neutral

87
Q

gov funding of speech exception

FREEDOM OF SPEECH

A

if a college gives financial support to student groups, it may not exclude religious groups

88
Q

compelled speech rule

FREEDOM OF SPEECH

A

gov can’t make you say, express, or support a message

89
Q

compelled speech exception

FREEDOM OF SPEECH

A

gov union/school may require students/members to pay due/fee EVEN IF part of it will be used to fund speech with which student/member disagrees) UNLESS primary purpose is to fund speech

90
Q

right not to speak

FREEDOM OF SPEECH

A

First Amendment protects a person’s right NOT TO SPEAK or TO SPEAK ANONYMOUSLY

Examples

  • a person may tape over the statement “Live Free or Die” on license plates
  • a person may not be forced to salute or pledge to the flag)
91
Q

chief purpose of 1st amendment guarantee of

FREEDOM OF THE PRESS

A

dissemination of truthful information

near v. minnesota

Conlaw II (7 decks)

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