Conlaw first amendment analysis

Question 1

Public figures must show =
Private must show =

Answer 1

Public = actual malice / falsity [NY times v. Sullivan]
Private = can win on lower state set standards, such as simple negligence.

Question 2

T/F) On matters of “public interest,” even private figures must show that the statement was made with some level of fault.

Answer 2

True!

Question 3

This Court held that speech is of “public concern” if it relates to any matter of political, social, or other community concern or if it is the subject of legitimate news interest and value to the public.

Answer 3

Snyder v. Phelps using holding in Connick v. Myers

Question 4

According to Snyder v. Phelps, what are matters of public concern?

Answer 4

“Any matter of political, social, or other community concern.” using the holding from Connick v. Myers

Question 5

Whats the balancing if public employee has spoken out against gov. on matters of “public concern?”

Answer 5

Court must balance:
1. Employee’s interest in speaking against gov.
2. Government’s interest in the effective and efficient fulfillment of its responsibilities to the public.

Question 6

T/F) If public employees’ expression does not relate to any matter of political, social, or other public concern, it is generally not protected by the First Amendment,

Answer 6

True

Question 7

T/F) According to SC, there Is a right to subject public officials to cartoons and parody, even if vicious in nature.

Answer 7

True. [Hustler magazine]

Question 8

The SC has agreed that the 1A protects right to claim “I was a Navy Seal” even if that is false. Where does the right end?

Answer 8

You cannot lie to receive official VA benefits. The key is reliance on the lie by another party.

Question 9

T/F) The SC has refused to recognize that violent video games or images of hurt animals are not protected by 1A.

Answer 9

True

Question 10

T/F) SC has strongly suggested before that there is a right to possess obscene material in the home, at least to be protected against UR search or seizure.

Answer 10

True [Stanley v. GA]

Question 11

To be “obscene” under Miller, what is the standard?

Answer 11

1. Definition of “obscene” must be defined by state statute.
2. Prurient interest [community standard]
3. Patently offensive [defined by law]
4. Lacks serious value [national standard lacking artistic literary, etc. value]

Question 12

Flow chart for expressive conduct analysis?

Answer 12

1. Spence
2. O’brien test

Question 13

To determine if sufficiently expressive to trigger first amendment analysis under Spence v. WA?
1.
2.

Answer 13

1. Intent to convey particular message
2. Likelihood message understood by viewers

Question 14

If spence test passed?

Answer 14

O’Brien:
1. Within Constitutional power of the government
2. Important or substantial gov. interest
3. Interest [regulation of conduct is] unrelated to suppression of free expression [if it is related, then it is Per Se unconstitutional, and we exit O’Brien. b/c it is NOT content neutral]
4. Restriction no greater than essential [narrowly tailored]

Question 15

O’Brien test for expressive conduct after Spence v. WA threshold?

Answer 15

1. Within Constitutional power of the government
2. Important or substantial gov. interest
3. Interest [regulation of conduct is] unrelated to suppression of free expression [if it is related, then it is Per Se unconstitutional, and we exit O’Brien. b/c it is NOT content neutral]
4. Restriction no greater than essential [narrowly tailored]

Question 16

T/F) Spence test does not determine if 1A violated, it determines if 1A implicated.

Answer 16

True

Question 17

Is there a right to offend?

Answer 17

Yes. Texas v. Johnson and Snyder v. Phelps.
And also Cohen.