exam 2 Flashcards
1
Q
Comstock Act (1873)
A
criminalized the distribution of “obscene” material through the post including birth control, and information about its use; failed to define what obscenity actually was
2
Q
Chaplinsky v. New Hampshire (1942)
A
obscene, lewd, and indecent speech falls under Fighting Words Doctrine, and thus is clearly not a protected form of speech
3
Q
Hicklin Rule (Queen v. Hicklin, Court of the Queen’s Bench, UK, 1868) (2)
A
- formally adopted into US precedent in Rosen v. Ohio (1896)
- defined obscenity as content that intended to deprave or corrupt minds that were open to immoral influences and who could get ahold of the materials
4
Q
Roth v. US (1957)
A
created the Court’s standard for defining what material could be considered obscenity: Roth Test
5
Q
Roth Test
A
whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest
6
Q
Jacobellis v. Ohio (1964) (2)
A
- clarified the Roth Test
- community in “community standards” = nation as a whole
7
Q
Memoirs v. Massachusetts (1966) (2)
A
- clarified the Roth Test
- to be obscene work must be “utterly without redeeming social value”
8
Q
Miller v. California (1973) (Q/R)
A
Q: is the sale and distribution of obscene materials by mail protected under the First Amendment’s freedom of speech?
R: No, obscene materials do not enjoy First Amendment protections.
Created the Miller Test
9
Q
Miller Test (3)
A
- whether the average person applying contemporary community standards would find that the work appeals to prurient interests
- whether the work depicts, in a patently offensive way, sexual conduct as defined by STATE LAW
- whether the work as a whole lacks serious literary, artistic, political, or scientific value
10
Q
NY v. Ferber (1982) (Q/R)
A
Q: Did the NY child pornography law prohibiting the promotion of sexual performances of children under 16 violate the First and Fourteenth Amendments?
R: No, the law was not in violation because the state’s interest in preventing sexual exploitation of minors was a compelling “government objective of surpassing importance.” The law was carefully drawn to protect children from the mental, physical, and sexual abuse associated with pornography while not violating the First Amendment.
11
Q
Reno v. ACLU (1997) (Q/R)
A
Q: Did certain provisions of the 1996 Communications Decency Act violate the First and Fifth Amendments by being overly broad and vague in their definitions of the types of internet communications which they criminalized?
R: Yes, the act did violate the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The Act failed to clearly define “indecent” communications, limits its restrictions to particular times or individuals, provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of “offensive” material is devoid of any social value
12
Q
US v. Williams (2008) (Q/R)
A
Q: Does the PROTECT Act abridge First Amendment freedom of speech by outlawing the pandering of material that is believed to be, or claimed to be, illegal child pornography?
R: No, the PROTECT is not overbroad because its requirements were clear and could be understood by courts, juries, and potential violators
13
Q
Brown v. Entertainment Merchants Assoc. (2011) (Q/R)
A
Q: Does the First Amendment bar a state from restricting the sale of violent video games to minors?
R: Yes, video games are not defined as obscenity. Video games communicate ideas and social messages through many familiar literary devices and features distinctive to the medium, conferring First Amendment protection
14
Q
in the case of private speech…
A
the government has to be wary of engaging in viewpoint discrimination
15
Q
viewpoint discrimination
A
the singling out of a particular opinion or perspective on a subject for treatment (ban/allow) that is unlike the treatment given to others
16
Q
in the case of government speech…
A
the actors are presenting a viewpoint (that of the agency/entity) exclusive of other viewpoints that cannot create an environment of discrimination
17
Q
Pleasant Grove City v. Summum (2009)
A
a city is free to determine the expressive content (in this case, the display of particular monuments) without also being party to creating a public forum that would allow all monuments to be placed on city-owned property
18
Q
Walker v. Texas Division, Sons of Confederate Veterans (2015) (Q/R)
A
Q:
1. Do specialty license plates constitute government speech that is immune from any requirement of viewpoint neutrality?
2. Does preventing the confederate flag from appearing on license plates constitute viewpoint discrimination?
R: Yes, no. The Court held that the government choosing the content of its speech is not unconstitutional viewpoint discrimination because that expression is the product of the democratic electoral process. Texas’s specialty license plate is an example of such government speech because Texas and other states have long used license plates to convey messages. Moreover, the public associates license plates with the State. Finally, Texas maintains direct control over the messages on its specialty plates from design to final approval.
19
Q
Matal v. Tam (2017) (Q/R)
A
Q: is the Disparagement Clause invalid under the First Amendment?
R: Yes, it violates the First Amendment because the plain meaning of the text clearly indicated that the Disparagement Clause applied to racial and ethnic groups, and therefore the Clause applied to the mark at issue in this case. Because the PTO simply approved trademarks, they were not government speech–to which the First Amendment prohibitions on viewpoint regulation did not apply–and holding otherwise would constitute a massive and unwise expansion of the government speech doctrine
20
Q
trademarks (2)
A
- a word, phrase, symbol, design, or a combination thereof, that identifies and distinguishes the source of the good of one party from those of others
- the provision of a trademark facilitates commerce and reliably marks the provision of a good/service from others
21
Q
results of Matal (2)
A
- trademarks (unlike license plates) are not government speech because they are not as closely identified in the public mind with the government
- trademarks are private speech, and therefore, the government has no right to judge what message it does or does not like, otherwise, it would produce viewpoint discrimination
22
Q
Iancu v. Brunetti (2019)
A
denial of a trademark because it is deemed “immoral” or “scandalous” is viewpoint discrimination and, therefore, unconstitutional
23
Q
Healy v. James (1972)
A
the denial of a charter of a student organization on a college campus must be related to valid reasons (aka, the organization causing a potential for harm) rather than for the content that the organization represents
24
Q
Rosenberger v. Rector and Visitors of the University of Virginia (1995)
A
the denial of student organization funds must be content-neutral in a limited public forum (school newspaper)
25
Perry Education Association v. Perry Local Educators' Association (1982)
the use of school mailboxes (teachers) or in-house email delivery is a non-public forum and, therefore, does not have the same protections
26
Minersville School District v. Gobitis (1940)
Court upholds mandatory flag pledge stating that the interests of patriotism and unity outweigh the interest of the student having to take the pledge
27
West Virginia v. Barnette (1943) (2)
1. overturns Gobitis, stating that the DPC of the 14th Amendment protects citizens (and students) against actions by the state and all its creatures when regulating issues of speech and expression
2. the compulsion of a patriotic act defies the basis of belief in our institutions and democracy as a whole
28
public forum (2)
1. a public place, such as a street or park, that "time out of mind, [has] been used" for expressive purposes
2. in the traditional public forum, speech restrictions must be content-neutral, be narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication
29
designated public forum (2)
1. "public property which the State has opened for use by the public as a place for expressive activity"
2. although the government is not required to open or maintain a designated public forum, as long as such a forum exists, the government is "bound by the same standards as apply in a traditional public forum"
30
non-public forum (2)
1. not open to the public for expressive purposes, although speakers may gain access by the government's invitation or permission
2. in a non-public forum, government may not discriminate according to viewpoint, but it may "draw distinctions which relate to the special purpose for which the property is used"
31
public forum restrictions (3)
towns can mandate the requirement of a permit for a mass demonstration, but the issuance of the permit must be content-neutral and not discriminate against any type of message
1. time: the protest/speech can take place at a reasonable TIME of day for normal activities
2. place: the protest/speech can take place if local ordinances and restrictions are respected and permits (if required are obtained)
3. manner: the protest/speech can take place if it is tailored to a specific purpose with respectful behavior/volume
32
Christian Legal Society v. Martinez (2010) (Q/R)
Q: Did the Ninth Circuit err when its holding runs directly contrary to the Seventh Circuit's 2006 decision in Christian Legal Society v. Walker?
R: No. The Supreme Court affirmed the Ninth Circuit, holding that the college's all-comers policy is a reasonable, viewpoint-neutral condition on access to the student organization forum; and, therefore, did not transgress First Amendment limitations.
33
McCullen v. Coakley (2014) (Q/R)
Q:
1. Did the First Circuit err in upholding the Massachusetts law under the First Amendment, as applied to the states through the Fourteenth Amendment?
2. If the Supreme Court's ruling in Hill v. Colorado applies, should that ruling be limited or overruled?
R: Yes, unanswered. The Court held that the Massachusetts law was content-neutral on its face because a violation depends not on the speech itself but on the location of the speech, and therefore does not need to be analyzed under strict scrutiny. However, the Court also held that the law is still not sufficiently narrowly tailored to serve a significant government interest because it places too great a burden on the petitioners' First Amendment Rights.
34
Madsen v. Women's Health Center Inc. (1994)
protests cannot happen within 36 feet of a clinic, and that noise restrictions on the protest were valid
35
Hill v. Colorado (2000) (2)
1. Court upholds limits on protests within 100 feet of medical facility entrance
2. majority is not upholding the restriction because the content of the speech, but rather the conduct that the women entering the clinic may undergo that is threatening or intimidating
36
McCullen v. Coakley (2014) (3)
1. the restrictions of time, place, and manner must not burden more speech than is necessary to further the government's interest
2. the law in question was deemed not to be "content" neutral and was, therefore, unconstitutional
3. the 35-foot buffer restriction from all entrances, exits, and driveways of clinics eliminated protesters' ability to calmly approach individuals for counseling
37
liberal judges
focused on the view of the patient and the actions of the protesters as "traumatic, confrontational, harassing," and that they created "implied threats of physical touching or assault"
38
conservative judges
focused on the rights of the protesters and that the opinion of the majority was perpetuating a "grievous moral wrong"
39
Wooley v. Maynard (1977) (2)
1. state law requiring the display of motto "Live Free or Die" on the license plate that an individual found objectionable stuck down
2. First Amendment protects individuals from state action when speaking freely or refraining from speaking at all
40
Rumsfeld v. FAIR Inc. (2006) (2)
1. Congress can withhold funds from college campuses that deny military recruiters
2. this does not stop the school having negative opinions about military recruitment, but they cannot prohibit the actions
41
303 Creative LLC v. Elenis (2023)
state of CO violated First Amendment by "forcing" a website designer to create sites with messages that she disagreed with
42
NAACP v. Alabama (1958) (Q/R)
Q: Did Alabama's requirement violate the Due Process Clause of the Fourteenth Amendment?
R: Yes. "Immunity from state scrutiny of petitioner's membership lists is here so related to the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment." Justice Harlan concluded that the state's obtaining the names of the Association's membership would likely interfere with the free association of its members, so the state's interest in obtaining the records was superseded by the constitutional rights of the petitioners.
43
Roberts v. US Jaycees (1984)
right of association protected against state intrusion does not apply equally to all groups; groups are only protected if they engage in "expressive association"
44
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)
private group does not have to allow individuals promoting a message they disagree with in a parade
45
NAACP v. Alabama (1958)
individuals have a right to associate together for expressive purposes (especially those of political origin) without state interference
46
Boy Scouts of America v. Dale (2000) (Q/R)
Q: Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders?
R: Yes, it does violate their right to free expression. Chief Justice Rehnquist wrote for the Court that, "[t]he Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."
47
National Rifle Association v. Vullo (2024) (Q/R)
Q: Does a New York regulator’s discouragement of companies from doing business with the National Rifle Association after the Parkland school shooting constitute coercion in violation of the First Amendment?
R: Yes. Government officials are free to criticize particular viewpoints and try to persuade others, but they cannot use state power to punish or suppress disfavored speech. Under the 1963 case Bantam Books v. Sullivan, the key question is whether, based on the totality of the circumstances, the government official’s actions could reasonably be understood as a threat of adverse consequences aimed at coercing a private party to punish or suppress someone else's speech on the government's behalf
48
prior restraint
government review of material to determine whether publication of the material should be allowed
49
while dicta, the Court in Near did outline a set of situations when the prohibition against prior restraint by the government may not be absolute (3)
1. protection of national security
2. regulation of obscenity
3. expressions that would incite the outbreak of violence
50
libel
written falsehoods that lead to defamation of character (being false AND damaging is key)
51
slander
spoken falsehoods that lead to defamation of character (can include television and radio media)
52
What are the "Seven Dirty Words" in FCC v. Pacifica (1978)
1. shit
2. piss
3. fuck
4. cunt
5. cocksucker
6. motherfucker
7. tits
53
controversy over standing in 303 Creative v. Elenis (2023) (2)
1. at the time of filing, Smith had neither designed any websites (at all) nor had been asked to design a site for a same-sex couple
2. filing was updated to include a "request" from a supposed same-sex couple; the request was found to be fraudulent by a troll/spammer and was traced back to a heterosexual man who did not know the request existed
54
freedom of the press is seen... (2)
1. to protect other political and personal liberties (press as a watchdog)
2. the heart of free press issues is prior restraint
55
Near v. Minnesota (1931)
the right to be free of prior restraint is not actually unlimited, and limitations of speech can be recognized in exceptional cases
56
New York Times v. US (1971) (Q/R)
Q: did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?
R: yes, because the government did not overcome the "heavy presumption against" prior restraint of the press in this case. The vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified
57
Cox Broadcasting v. Cohn (1975)
states cannot restrict the publication of truthful and public information (names of rape victims)
58
Nebraska Press Association v. Stuart (1976)
no gag order on pretrial proceedings even if meant to protect the defendant from prejudicial publicity
59
Simon & Schuster v. New York State Crime Victims Board (1991)
content-based prohibitions are averse to the First Amendment (taking profits from a book published by a convicted criminal about his crime creates an economic burden that isn't found on any other types of speech)
60
Hazelwood School District v. Kuhlmeier (1988) (Q/R)
Q: Did the principal's deletion of the articles violate the students' rights under the First Amendment?
R: no, because schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns"
61
Branzburg v. Hayes (1972) (Q/R)
Q: is the requirement that news reporters appear and testify before state or federal grand juries an abridgment of the freedoms of speech and press as guaranteed by the First Amendment?
R: No. the Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.
62
reaction to Branzburg v. Hayes decision (3)
1. 49 states now grant reporters some form of privilege (cannot be compelled to testify; cannot be asked to identify confidential information)
2. 31 states have codified "Shield Laws" creating established legislative and legal precedent
3. 12 federal circuit courts also recognize the idea of "qualified privilege"
63
Zurcher v. Stanford Daily (1978)
press not immune from valid search warrants
64
Houchins v. KQED (1978)
the press is not entitled to greater access than the general public to government information (newspaper denied access to jail)
65
Richmond Newspapers v. Virginia (1980)
the press has the right to attend a criminal trial (in part based on the right to receive information)
66
New York Times v. Sullivan (1964) (Q/R)
Q: did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?
R: yes, because when a statement concerns a public figure, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity ("actual malice")
67
Rosenbloom v. Metromedia (1971)
the primary interest of the Sullivan test derives not from the person's status as a "public figure" or "public official" but whether the defamatory act concerns a matter of public or general interest (this makes it extremely difficult for anyone mentioned in a story of public interest to prove libel)
68
Gertz v. Welch (1974)
an individual can only be defined as a public figure if they seek out notoriety; Gertz was considered a private figure at the time of the suit and was only brought to public attention through the suit
69
Time, Inc. v. Firestone (1976)
Time Magazine ran a story of the Firestone divorce that stated, "the divorce proceedings had produced enough testimony of extramarital adventures on both sides to make Dr. Freud's hair curl." Despite being a wealthy socialite, Firestone was deemed to be a private figure
reaffirmed decision in Gertz
70
Hutchinson v. Proxmire (1979)
notoriety of a case does not convert a private figure into a public figure for defamation cases
71
Hustler Magazine v. Falwell (1988) (Q/R)
Q: Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress?
R: yes, because public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The interest of protecting free speech surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject
72
actual malice
standard required in libel cases that states that the information published was "knowingly false" and was published "with a reckless disregard of whether it was false or not" (reckless disregard does not equate to neglect in professional standards of fact-checking)
73
Masson v. New Yorker (1991)
actual malice can include using false quotes that change the meaning of the actual message
74
libel law today...
holds public officials, public figures, or items in the public interest to the Sullivan standard requiring the showing of actual malice
75
Sandmann v. Washington Post
Covington Catholic High School and the standoff in the National Mall with Native American Activist Nathan Phillips; suit has reached undisclosed settlement - $275 million claim of damages
76
Rolling Stone and the Fraternity Rape Crisis (2)
1. RS published an article with an anonymous "Jackie" claiming to have been gang rape at a UVA frat house; story was discredited when it was foudn that no other interviews had been done
2. judgment of $2 million awarded to the associate dean of the university that had been characterized as "indifferent to rape" in the article; $1.65 million also awarded to the fraternity
77
Sedition Act (1798) (2)
1. prevented writing or speeches that might be "false, scandalous, or malicious" about the Federal Government
2. the goal of the speech had to be to defame or bring the government or its actors into contempt or disrepute
78
Civil War - Restrictions of Speech
Lincoln made efforts to curtail "treacherous" behavior and "utterances that would cause insubordination"
79
Espionage Act (1917)
passed to prevent insubordination in the military and any support or sympathetic action on behalf of enemies of the US during war
80
Sedition Act (1918)
extended the Espionage Act to cover more offenses, especially speech or expression that cast the war effort negatively
81
Schenck v. United States (1919) (Q/R)
Q: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?
R: no, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.
Created the Clear and Present Danger Test
82
clear and present danger test
requires a clear link between the speech in question and the potential evil at hand (which can be difficult to define, thus giving the Courts leeway)
83
Abrams v. United States (1919) (2)
1. does not incorporate freedom of speech to the states; the defendants were charged under the Espionage and Sedition Acts
2. created the Bad Tendency Test
84
Bad Tendency Test
only requires that the words have a 'tendency' to bring about evil
85
Gitlow v. New York (1925) (Q/R)
Q: Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?
R: yes. On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.
86
aftermath of Gitlow
incorporation of the First Amendment Free Speech and Press to the States
87
Court in the 1920s is interpreting the First Amendment as...
a protection of the common good rather than individual speech
88
Court in the 1930s begins to...
shift back to a more liberal standard requiring a lack of vagueness in laws banning speech (Stromberg v. California) and then returning to the Clear and Present Danger standard in DeJonge v. Oregon, overturning Whitney
89
Footnote 4 in US v. Carolene Products (1937)
the Court held that economic regulations would be presumed to be valid
90
preferred freedoms doctrine
some constitutional freedoms, principally those of the First Amendment, are fundamental to a free society and therefore will be entitled to more judicial protection (and by extension judicial scrutiny when they are violated) than others
91
Thomas v. Collins (1945) (2)
1. mix of Preferred Freedoms and Clear and Present Danger
2. prior restraint is a violation of free speech
92
American Communications Association v. Doud (1950)
court finds that a balancing standard should be put in place; Congress states that Communism causes harm and regulation of conduct and oaths of affirmation are in the public's interest
93
Smith Act of 1940
congressional act that criminalizes any acts or speech that advocate the violent overthrow of the government or to organize or be a member of any group or society devoted to advocacy of such actions
94
Dennis v. US (1951) (Q/R)
Q: Do the conspiracy charges filed against Dennis and his comrades for plotting to overthrow the government violate the protections guaranteed under the First Amendment free speech?
R: no, because the conspiracy of filing the false affidavits was intentional and that the events of filing the affidavits and using the NLRB facilities together were a "concert of action" with the purpose of defrauding the Government. Additionally, the actions had clear intent and design to overthrow the government.
rejects the Clear and Present Danger Test and Preferred Freedoms Doctrine and introduces [another] new standard: the Clear and Probably Danger Test
95
Clear and Probably Danger Test
"whether the gravity of the evil, discounted by its improbability, justifies the invasion of free speech necessary to avoid the danger"
96
Yates v. US (1957) (2)
1. modified Clear and Probable Danger Test to differentiate between advocacy of action and advocacy of abstract doctrine, with occurrences of the former being "few and far between"
2. to be convicted of conspiracy, the individual must encourage others to take some form of action, not simply hold or assert the beliefs themselves
97
Brandenburg v. Ohio (1969) (Q/R)
Q: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?
R: yes. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The Criminal Syndicalism Act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
created the Imminent Lawless Action standard
98
Imminent Lawless Action standard (2)
1. is the speech "directed at inciting or producing imminent lawless action?"
2. is the speech "likely to incite or produce such action?"
99
Court gives the highest order of protection to...
speech that conveys content that surrounds political or social issues
100
restrictions on speech must be...
neutral of the content being delivered; prior restraint is not legal
101
Court does not protect instances of...
libel, slander, obscenity, violent speech, criminal speech (especially if it produces property damage)
102
symbolic speech (2)
1. actions that purposefully and discernably convey a particular message or statement to those viewing it
2. the idea that a person can "speak" by engaging in certain actions that send a specific message
103
Stromberg v. California (1931)
Court acknowledges at least some forms of symbolic speech deserve First Amendment Protection
104
Thornhill v. Alabama (1940)
labor union picketing is a protected form of expression
105
Milk Wagon Drivers Union (1941)
picketing can be regulated if accompanied by violence
106
US v. O'Brien (1968) (Q/R)
Q: Was the law an unconstitutional infringement of O'Brien's freedom of speech?
R: no. The Court established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest."
created O'Brien Test
107
O'Brien Test (4)
1. is the regulation within the constitutional power of the government?
2. does it further an important or substantial government interest?
3. is the governmental interest unrelated to the suppression of free expression?
4. is the incidental restriction on alleged First Amendment freedoms no greater than is essential to that interest? (narrowly tailored)
108
Texas v. Johnson (1989) (Q/R)
Q: Does a state law that prohibits the burning of the American Flag violate the
First Amendment freedom of expression as it applies to the states under the DPc of the 14th?
R: yes. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expressions, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.“
109
West Virginia v. Barnette (1943)
students do not "abandon their constitutional rights at the schoolhouse gates"
110
Tinker v. DeMoines (1969) (2)
1. student's symbolic speech is protected similarly to that of adults
2. specifically, the speech (wearing armbands) was a form of silent and passive expression, and it did not interrupt the work of the school day or other students
111
Morse v. Frederick (2007) (Q/R)
Q:Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?
R:
112
Mahoney Area School District v. B.L. (2021) (Q/R)
Q: Does the First Amendment prohibit public school officials from regulating off-campus student speech?
R:
113
Adderly v. Florida (1966)
reasonable regulation of where protest can take place is fine
114
Clark v. Community for Creative Non-Violence (1984)
regulating the time of protest is fine
115
Chaplinsky v. New Hampshire (1942) (Q/R)
Q: Does a state law which prohibits the use of offensive words to someone on the street violate the First Amendment right to freedom of speech?
R: no.
116
Fighting Words
basic test to determine what a man of common intelligence would understand would be words that are likely to cause an average addressee to fight
117
Terminello v. Chicago (1949)
context matters, must be likely to produce an evil greater than "mere inconvenience or annoyance"
118
Feiner v. New York (1951)
"when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, [the police] are [not] powerless to prevent a breach of the peace
119
Forsyth Co., Georgia v. Nationalist Movement (1992) (2)
1. if government's intention is to promote public order in the face of controversial speech, they must objectively the cost of the potential disruption
2. if the cost is negligible then the government's action are just a tool to burden the speech
120
Cohen v. California (1971) (Q/R)
Q: Did California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment?
R: yes. The Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).
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hate and offensive speech
speech that arises from "hostile, discriminatory, and prejudicial attitudes toward another person's innate characteristics: sex, race, ethnicity, religion, sexual orientation"
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National Socialist Party v. Skokie (1977)
Court allows a group of Nazi sympathizers to march but did not explicitly deal with the content of the speech
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RAV v. St. Paul (1992)
state laws cannot prevent or prohibit speakers who express views on disfavored subjects
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Wisconsin v. Mitchell (1993)
statutes can enhance penalties for speech that is not protected under the First Amendment (including hate speech) since the intent of the speech is to inflict individual and societal harm
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Virginia v. Black (2003)
clarifies the difference between "true threats" and the mere utterance of a threat:
1. question of the intention behind "cross burning"
2. plurality opinion (Sandra Day O'Connor) - "cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see it, but in this case, there existed no true threat to a particular individual or group of individuals"
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Perez v. Florida (2017) (2)
1. to demonstrate that a true threat exists, the government must prove that the speech was more than just a "mere utterance of threatening words"
2. the government must prove that the speaker intended to place "the victim in fear of bodily harm or threat"
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Williams v. Mitchell (1993)
enhanced sentencing for biased or racially motivated crimes are not violations of the First Amendment
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Elonis v. US (2015)
1. Elonis posted lyrics anonymously on Facebook that were assumed to contained threats against the President of the US
2. proof of intent is required to convict an individual for threats
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Snyder v. Phelps (2011) (Q/R)
Q: Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?
R: yes.
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US v. Alvarez (2012) (Q/R)
Q: Does the Stolen Valor Act, violate Free Speech Clause of the First Amendment?
R: yes. Content-based restrictions on speech are subject to strict scrutiny and are almost always invalid, except in rare and extreme circumstances. While categories of speech, such as defamation and true threats, present a grave and imminent threat, false statements alone do not present such a threat. Congress drafted the Stolen Valor Act too broadly, attempting to limit speech that could cause no harm. Criminal punishment for such speech is improper.
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Bigelow v. Virginia (1975)
states cannot prohibit advertisements of clearly legal products or content; in this case, abortion advertisement in a newspaper
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Virginia State Board of Pharmacy v. Virginia Consumer Council (1976) (2)
1. the economic nature of ads does not take away First Amendment protection
2. the Court decision was grounded in part in consumers' right to receive information
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Bates v. State Bar of Arizona (1977) (Q/R)
Q: Did the Arizona rule, which restricted legal advertising, violate the freedom of speech of Bates and his firm as guaranteed by the First and Fourteenth Amendments?
R: yes. The Court argued that commercial speech does merit First Amendment protection given the important functions it serves in society, such as providing consumers with information about services and products, and helping to allocate resources in the American system of free-enterprise. The Court held that allowing attorneys to advertise would not harm the legal profession or the administration of justice, and, in fact, would supply consumers with valuable information about the availability and cost of legal services.
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Central Hudson v. PSC of New York (1980) (4)
the Court lays out a four-part test for determining if regulations of commercial speech violate the First Amendment:
1. does the commercial speech in question relate to lawful activity and it is not misleading?
2. is there a substantial government interest in the restriction?
3. does the regulation directly advance the government's interest?
4. is the regulation no more extensive than necessary to serve that interest?
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political speech
speech or actions that comment on government action or constitute political opinion
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McConnell v. FEC (2003)
not all political speech is protected, and it is within the jurisdiction of FEC to limit campaign donation to avoid of threats of corruption by contributors
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Emily's List v. FEC (2010 - C of ADC)
1. Political Action Committees (PACs) not sponsored by corporations or unions can not be limited in their spending in federal and non-federal elections
2. the regulations put in place by the FEC on both types of spending were outside of their authority to impose
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Central Hudson Gas and Electric Corp. v. Public Service Commission of NY (1980) (Q/R)
Q: Did the PSC's ban on advertising violate the freedom of speech protected by the First and Fourteenth Amendments?
R: yes. The Court recognized New York's interest in promoting energy conservation and accepted that the PSC's regulation would directly further that interest. However, since the regulation restricted all promotional advertising regardless of its effect on electricity use, it violated the First and Fourteenth Amendment under First National Bank of Boston v. Bellotti.
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Citizens United v. FEC (2010)
the prohibitions against corporations and unions donating to campaigns is declared unconstitutional; overturned McConnell v. FEC
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SpeechNOW v. FEC (2010 C of ADC)
allowed independent funding organizations (not registered as PACs) to also have protections against donation limits
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McComish v. Bennett (2012)
state laws providing campaign "equalizing" funds between candidates running for office from taxpayer funds are unconstitutional
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McCutcheon v. FEC (2014)
aggregated individual contribution limits are unconstitutional
