Expressive Freedoms Flashcards
(41 cards)
Content Based Regulations of Speech
1) Content based restrictions
2) on the subject matter or the viewpoint of speech
3) must meet strict scrutiny
Content Neutral regulations of speech
1) Content neutral regulations
2) that burden expressive conduct
3) generally only need to meet intermediate level scrutiny
4) EXCEPT for unprotected, less-protected, and government-funded speech which may be regulated on subject matter so long as they are viewpoint neutral
Prior restraints
1) prevents speech before it occurs
2) strict scrutiny
Licensing & permitting authorities for expressive activities
1) must operate under narrowly drawn and clear standards
2) that leave no discretion
3) must be opportunity for prompt judicial review of license or permit denial
Void for Vagueness: speech
1) a regulation is void for vagueness
2) if a reasonable person
3) cannot tell form the terms of the law what is prohibited and what is permitted
Overbroad: speech
1) regulation is overbroad
2) if it affects substantially more speech than necessary to meet govt’s legitimate purpose
Unduly discretionary: speech
1) regulation is unduly discretionary
2) if it gives officials inadequate standards
3) for applying the law’s requirements
Issue Trio: speech
1) vagueness
2) overbroad
3) unduly discretionary
Freedom to not speak
1) govt cannot force you to speak or act in a way implying speech like saluting a flag
2) but the govt can force you to pay $ that gets distributed to speech that you don’t agree with so long as it distributes the $ in a viewpoint neutral way
Symbolic Speech
In order to regulate, govt needs:
1) important purpose
2) unrelated to suppression of the message
3) burden on communication is no greater than necessary to achieve that purpose
Anonymous speech
1) generally protected
a) cannot require protest literature to be signed by real name
b) govt employees don’t have to release all political or social organization memberships if not relevant to job
2) but can release signatories on referendums or initiatives
Unprotected speech
1) incitement of illegal conduct
2) fighting words
3) true threat
4) obscenity and sexually oriented speech
5) defamation
6) fraud
Incitement of Illegal Conduct
The illegal conduct must be
1) likely
2) imminent
3) intended by the speaker
Less protected speech
commercial speech
Fighting words
1) abusive words
2) directed personally to the hearer
3) that are likely to produce immediate and physically violent reactions
4) in the average person
NOTE: not just annoying or offensive, watch for hate-speech laws b/c they are often invalid
True Threat
1) statement
2) that a reasonable person would interpret under the circumstances
3)as the D’s serious declaration of intent to murder or inflict bodily harm
IRRELEVANT HERE:
threat directly to intended target, threat was made with knowledge that it would be communicated to the target, threat in public or private conversation
Obscenity and Sexually-Oriented Speech
1) could be the production, sale, or distribution
2) material must describe or depict sexual conduct that taken as a whole
A) appeals to the prurient interest in sex, using community standards
B) is patently offensive using community standards
C) lacks serious value of a literary, artistic, political, or scientific nature using a national reasonable person standard
NOTE: must consider entire work, not just a paragraph or sentence, when applied to materials for minors the same test applies but the standards are to minors
Child Porn
1) production, distribution, sale, or possession
2) materials depicting actual minors engaging in sexual conduct
3) may be banned without meeting 1st amend. test for obscenity or sexually-oriented speech
NOTES:
Does not include “virtual children” porn unless seller is holding it out or advertising it to be real child porn under the pandering doctrine
Zoning and 1st amend
1) localities may zone location of adult bookstores, ect.
2) So long as they are not completely zoned out of locality and there is a possibility of them being allowed somewhere
BUT
Nude dancing may be banned under generally applicable public nudity regulations
Fraud
1) punishing intentional misrepresentation
2) upon which a victim relied and
3) which caused actual injury
OFTEN CONSTITUTIONAL even though content based
BUT govt cannot ban false statements of facts for the sole reason of promoting truthful discourse
Commercial speech
1) Illegal activities: if it is promoting an illegal activity or is false or misleading, it is unprotected speech that may be prohibited
2) Truthful advertising with an inherent risk of deceiving or misleading the public may be prohibited
3) regulations on Truthful advertising for lawful products or services, must meet intermediate level scrutiny
Traditional and designated forum regulations
1) regulation of time, place or manner of speech and assembly
2) in traditional or designated public forums
3) only permitted if the regulation is content-neutral both to subject and viewpoint
4) is narrowly tailored
5) serves an important government interest
6) leaves open alternative avenues of communication
monuments in park
govt speech so rational basis review
Limited public or non-public forum regulations
1) regulation of time, place, or manner of speech and assembly
2) in limited public or non-public forums
3) is permitted if the regulation is view-point neutral
4) and meets rational basis review
