Constitutional Law Individual Rights - Freedom of Expression

Question 1

What is the basic analysis used for Speech Restrictions?

Answer 1

1. Is there a speech?:
   a. Spence Test: Communicative activity –> intent to convey a particular message. In the surrounding circumstances, is it likely that the message is understood by those who view it.
2. Is there a restriction by the government?
   a. Is the regulated activity expressive?
   b. If the regulation is based on non-expressive activity, does it have the effect of singling out those who engage in expression? It can be content based based on it’s face or it’s purpose
3. Is the restriction constitutional?
   a. Tiers of Scrutiny: content based are strict scrutiny, non-content based are intermediate scrutiny

Question 2

What is the purpose prong of the content based speech regulation

Answer 2

1. restriction cannot be justified without reference to the content of the regulated speech
2. adopted by the government because of the disagreement with message conveyed

Question 3

What was American Booksellers about?

Answer 3

Obscenity is not protected by 1st Amendment, but a government can’t restrict a speech just because it doesn’t agree with the viewpoint.

Question 4

What is the Miller Test for obscenity?

Answer 4

1. taken as a whole
2. prurient interest in sex
3. to portray sexual conduct
4. in a patently offensive way
5. in a way where there is no serious literary, artistic, political, or scientific value

local, not national standards

Question 5

What are the kind of speech not protected by the 1st Amendment?

Answer 5

fighting words, incitement, true threats, obscenity, child pornography, defamation

Question 6

Fighting Words

Answer 6

Words that are likely to provoke a fight, including those that generally can cause a violent reaction

Question 7

What are elements of Incitement?

Answer 7

1. directed by the speaker
2. inciting or producing imminent lawless action
3. likely to incite or produce such action

Scope: high degree of directness. Mere advocacy of illegal conduct

Question 8

What are elements of true threats?

Answer 8

1. speaker intends to communicate
2. a serious expression
3. of intent to commit
4. an act unlawful violence
5. to a particular individual or group of individuals

speaker need not intent to threaten

Question 9

What did New York Times Co. v. Sullivan

Answer 9

1. there needs to be actual malice in order for public official to recover damages for defamation. public figures are those who occupy positions of persuasive power and influence. Limited public figures: those who thrust themselves into forefront of public controversies. Actual Malice applies to limited public figures as well.

Question 10

Why was the law in RAV vs. Paul struck down as unconstitutional?

Answer 10

R.A.V. v. St. Paul struck down a hate speech law because it only banned offensive speech from certain viewpoints (e.g., racist speech), and that’s viewpoint discrimination, which violates the First Amendment — even within a category of unprotected speech like fighting words.