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Bar Con Law > 8) 1Am - Speech > Flashcards

8) 1Am - Speech Flashcards

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1
Q

freedom of speech: source

A

1A: “Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peacably to assemble, and to petition the government for a redress of grievances”

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2
Q

1A speech: scope

A

feds + state (14 DPC)

but do need state action, like always

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3
Q

1A :generla principle

A

1A stops gvt from distorting the marketplace of ideas, esp re pol speech

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4
Q

1A: content based restrictions: rule

A

content-based discrim by gvt –> SS! (usu –> unconst)

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5
Q

1A: content based restriction: exs

A

1) censorship

2) viewpoint discrim

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6
Q

1A: content base: cases held this speech ALLOWED

A

pol speech at parks
flag burning
can’t prohibit critical foreign gvt speech near embassies

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7
Q

1A: content based restrictions: pass strict scrutiny

A

some can

ex: ban on child porn even if fake

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8
Q

content-based restrictions: EXCEPTIONS: result

A

not subject to SS (often different test)

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9
Q

unprotected or low-value speech: mnemonic

A

HAFWOUD

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10
Q

unprotected or low-value speech: list

A 
HA: hostile audience
FW: fighting words
O: obscenity
U: unlawful advocacy
D: defamation
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11
Q

content-based restrictions: EXCEPTIONS:

A

1) unprotected or low value speech
2) gvt as speaker
3) content-neutral conduct regulation
4) content-neutral place, time, manner regulation

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12
Q

unprotected/low value: rule

A

rational basis!

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13
Q

unprotected: unlawful advocacy: def

A

speech inciting violence or other unlawful action

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14
Q

unprotected: unlawful advocacy: test

A

1) subjective (intent of speaker): imminent, unlawful action +
2) objective: likely in obj fact to produce imminent unlawful action

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15
Q

unprotected: fighting words: def

A

words likely to incite an ordinary citizen to acts of immediate physical retaliation aren’t protected

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16
Q

unprotected: fighting words: reqs

A
  • -direct personal insult (more than annoying or offensive)
  • -BUT statute facially invalid if conduct proscribed is vague or overbroad
  • -BUT statute facially invalid if designed to punish certain viewpoints
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17
Q

unprotected: hostile audience: def/rule

A

imminent violent rp against speaker by crowd

BUT, police msut first make reasonable effort to control crowd (before intefering w speaker)

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18
Q

unprotected: obscene speech: test

A

(all) (work as a whole)
1) prurient interests–based on local com standards
2) statute specifically defines sexual conent + patently offensive to local com standard
3) lacks serious literary, artistic, pol, or sci value (SLAPS)

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19
Q

unprotected: defamation: rule

A

depends on:

1) P is pub official or pub figure or neither?
2) st involves matter of pub concern?

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20
Q

unprotected: defamation: P is private person, subject is private concern

A

(speech not protected by 1A so any state defamation law ok)
strict liability ok
(SL: state saying falsity + damages is enough, w/o MR)

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21
Q

unprotected: defamation: P is private person, subject is public concern

A

MR: negligence re truth or falsity of statement (SL not permitted)

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22
Q

unprotected: defamation: P is public official or figure (regardless of subject)

A

P must prove actual malice (knows false or reckless disregard of truth/falsity

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23
Q

unprotected: defamation: private person + public concern and false-light invasion of privacy (different tort)

A

P must prove actual malice

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24
Q

unprotected: defamation: false-light invasion of privacy (different tort)

A

not liable if:
1) truthful info obtained from public record
OR
2) newsworthy + true

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25
Q

low-value speech: aka

A

quasi-protected

26
Q

low-value speech: kinds

A

1) commercial

2) sexual or indecent

27
Q

commercial speech: def

A

speech promoting commercial transaction

28
Q

commercial speech: test

A

1) no 1Am protection if false or advertising unlawful activity

otherwise, this test (like IS):

1) substantial gvt interest
2) regulation directly advances gvt interest
3) reg not greater than nec to serve purpose

29
Q

commercial speech: examples of what state CAN”T ban

A
  • -ads w drug prices

- -attys advertising

30
Q

commercial speech: ok for state to ban

A
  • -L in-person solicitaiton

- -commercial billboards

31
Q

sexual/indecent speech: rule

A

speech fully protected but ok regulate on basis of secondary effects

  • -reg must serve substantial gvt interest
  • -must leave open reasonable alternative channels of com
32
Q

gvt as speaker: rule

A

gvt can say what it wants, no 1A problem

comes up re whether speaker speaking on his own, or part of gvt

33
Q

conduct regulation: test

A

1) if law is regulating conduct + just incidental burden on speech, then ok if:
2) important gvt interests unrelated to content
3) no greater restriction than nec to serve interest

34
Q

time/place/manner restrictions: test

A

gvt can place reasonable restrictions on time/place/manner of speech in public areas.

Reg must:

1) be content-neutral (subject matter + viewpoint)
2) narrowly tailored to important gvt interest
3) leave open alternative channels

35
Q

time/place/manner: rule re permits

A

states can require large gatherings to get permit for use of public property

AS LONG AS: permit rules are specific, content-neutral grounds to approve or deny

36
Q

time/place/manner: exs: state CAN”T

A
  • -require pay for actual expense of police protection
  • -completely ban door-to-door solicitation
  • -require religious or pol canvassers to register _ get a permit
37
Q

time/place/manner: exs: state CAN restrict:

A
  • -volume + hours of amplifiers–ok require door to door solicitors to ID selves to authorities (crime prevention)
  • -ok post office stops certain person from mailing you things at your req
  • -ok buffer zones
38
Q

time/place/manner: protests on sidewalk in front of private home: rule

A

ok restrict if other areas of neighborhood are available and restriction is content-neutral

39
Q

time/place/manner: NOT PUBLIC PLACES

A

if gvt property but not public place (mil base, jail, gvt workplace, etc): ok regulate, if

1) viewpoint neutral (note: content restrictions ok)
2) rationally related to legit gvt interest

40
Q

time/place/manner: not public place: exs of what it’s ok for gvt to do

A
  • -prohibit protests at jail
  • -close mil base to pol speech
  • -regulate speech in gvt workplace
  • -sell space on busses for commerical advs but not pol
  • -public tv station can exclude candidate from debate based on neutral criteria
41
Q

time/place/manner: convert to public space

A

public school can’t deny religious groups access (bc once make school public space, can’t make content based restrictions)

42
Q

public employment / pol opinion: ok deny job for pol beliefs if:

A

1) high level policy-making job, OR
2) this test:
a) active member of subversive org +
b) w knowledge of illegal goals +
c) intent to further illegal goals

43
Q

public employment: oath reqs

A

ok require oath to:
1) support constitution
2) oppose illegal overthrow of gvt
only

44
Q

public employees: ok fire or discipline for speech if

A

1) not a matter of public concern, or

2) yes public concern, but potentially disruptive

45
Q

school children can be disciplined for speech if

A

potentially disruptive

46
Q

prisoners’ speech rights can be restricte dif

A

rationally related to legit penological objective

47
Q

prior restraint: def

A

blocking speech before uttered

48
Q

prior restraint: gen rule

A

strong presumption against consitutional validity

49
Q

prior restraint: exceptions

A

ok if:

1) classified military info
2) gvt ee pre-publication review (for ntl security)

50
Q

pretrial publicity: test

A 
(usu can't do pretrial gag order)
factors:
1) nature + extent of publicity
2) availability of other measures to mitigate risks of pretrial publicity
3) likely effectiveness of the measures
51
Q

pretrial publicity: potential other measures

A

1) voir dire
2) change venue
3) postpone trial

52
Q

prior restraint: movie censorship

A

ok if:

1) narrow + reasonable standards
2) immediate injunction
3) BOP censor
4) prompt judicial hg

53
Q

permit denials

A

1) if statute facially valid, must challenge in court (even if was applied unconstitutionally)
2) if statute is NOT facially valid, ok ignore if permit denied (or not even apply for one)

54
Q

erroneous injunction

A

still must obey r appeal

55
Q

problems w state regulations on speech1

A

1) overbroad

2) vague

56
Q

overbroad restriction: def + result

A

state must restrict in narrow, specific way – not overly broad bc dnw chill protected speech
(exception to 3P standing)
result: can’t apply against ANYONE!

57
Q

vagueness restriction: def + result

A

gvt regulations must be drawn w narrow specificity, not vauge

result: can’t apply against ANYONE!

58
Q

freedom of press

A

no greater speech rights than member of public (still must testify at grand juries)

radio + tv gets LESS Protection (bc license from gvt): ex ok gvt ban offensive sexual content

tho cable tv: somewhat in btwn

59
Q

freedom of press: cable tv:

A

content neutral regulations –> intermediate scrutiny

60
Q

bar admission: communism

A

can’t deny admission for past membership in communist party

but can refuse bar membership if refuse to answer questions re communism

61
Q

free speech: approach

A

1) protected at all?
2) content based restriction?
3) state action?

62
Q

constitutional: gen approach

A

1) state action?
2) state or fed?
3) if fed, power to do it?
4) either way: right infringed?

Bar Con Law (8 decks)

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