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Flashcards in First Amendment Deck (30)
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1
Q

Content Based Restrictions

A

Generally must meet SS

Two types: Subject matter restrictions and viewpoint restrictions

2
Q

Content Neutral Regulation

A

Generally need only meet intermediate scrutiny

3
Q

Prior Restraints

A

Court orders suppressing speech must meet SS

Must be complied with until they are vacated or overturned. Can’t violate a court order and challenge it later

4
Q

Collateral Bar Rule

A

Court orders suppressing speech must be complied with. Can’t violate the court order and bring challenge later, even if it is unconstitutional

5
Q

Licensing of Speech

A

Gvt can require licence if:

(1) there is an important reason for licensing
(2) clear criteria leaving almost NO DISCRETION to the licensing authority
(3) procedural safeguards such as prompt determination of requests and judicial review

6
Q

Vagueness

A

Law is unconstitutionally vague if a REASONABLE person cannot tell what speech is prohibited and what is allowed

7
Q

Overbreadth

A

law is unconstitutionally overbroad if it regulates a SUBSTANTIAL AMOUNT of protected speech in relation to its plainly legitimate sweep

Can be facially invalidated

8
Q

Symbolic Speech

A

Government may regulate conduct if it has an IMPORTANT interest UNRELATED TO SUPPRESSION OF THE MESSAGE and if the impact on communication is NO GREATER THAN NECESSARY to achieve the government’s purpose.

Ex: Flag burning constitutionally protected
Ex: draft card burning is not constitutionally protected
Ex: local gvts may prohibit nude dancing
Ex: burning a cross is protected unless done with intent to threaten
Ex: contribution limits in election campaigns are constitutional, but expenditure limits are not

9
Q

Inciting Imminent Lawless Action

A

government may punish speech if there is a SUBSTANTIAL likelihood of IMMINENT illegal activity and if the speech is directed to cause imminent illegality

10
Q

Obscenity

A

Speech is obscene and unprotected if it:

(1) appeals to the PRURIENT interest in sex, using a community standard
(2) is PATENTLY OFFENSIVE under community standards, and
(3) Lacks serious artistic, literally, political, or scientific VALUE, under a national standard

11
Q

Child Pornography

A

May be completely banned, even if not obscene. But may only be banned if actually using children

HOWEVER, gvt may NOT bar visual material that only depicts minors engaged in sexual conduct (CGI or young looking pornstars)

POSSESSION of child pornography may be punished

12
Q

Zoning Regulations on Adult Entertainment

A

allowed under First Amendment if regulation is designed to reduce the secondary effects of such businesses.

CANNOT impose a flat ban

13
Q

Profane and Indecent speech

A

Generally protected by FA

Ex: over broadcast media (captive audience)
Ex: in schools

14
Q

Fighting Words

A

True threats are NOT protected by FA (cross burning w/ intent to intimidate)

Words likely to incite immediate physical retaliation in an AVERAGE person

Annoying is insufficient.

Also statutes that punish fighting words for only certain viewpoints will not be constitutional (e.g. proscribing only fighting words that insult on basis of race, religion, or gender)

USUALLY WILL BE INVALID AS VAGUE OR OVERBROAD ON MBE

15
Q

Commercial Speech

A

False and misleading ads or ads that propose illegal activity are NOT protected by the FA. Can be punished.

Truthful commercial speech upheld only if (type of intermediate scrutiny):

(1) Serves a SUBSTANTIAL gvt interest;
(2) DIRECTLY ADVANCES that interest; and
(3) is NARROWLY TAILORED, but need not be the Least restrictive alternative (reasonable fit)

Ex: may prevent professionals from advertising under a trade name
Ex: may prohibit attorneys from in person solicitation for profit (mail is fine)
Ex: may NOT prohibit accountants from in person solicitation of clients for profit (no risk)

16
Q

Defamation of public official or public figure

A

Requires P to prove all elements of defamation, plus that the statement was FALSE and ACTUAL MALICE

17
Q

Public Figure

A

Tough determination, but is one who “thrusts themselves into the limelight”

18
Q

Defamation of private figure on a matter of public concern

A

P may recover by proving FALSITY and mere NEGLIGENCE by D.

BUT, P may recover presumed or punitive damage ONLY BY SHOWING ACTUAL MALICE

19
Q

Defamation of Private Figure on a matter not of public concern

A

P can recover presumed and punitive damages w/o showing actual malice. negligence is enough.

D must prove truth of statement

20
Q

Public Forum

A

Government properties that have been historically open to speech-related activities (streets, sidewalks, and public parks)

Regulations must be CONTENT AND VIEWPOINT NEUTRAL. If not, subject to SS

TPM restrictions allowed, however

21
Q

Time, Place, Manner Restrictions

A

Government may regulate TPM in public forums and designated forums if the regulation is:

(1) CONTENT NEUTRAL (includes viewpoint)
(2) NARROWLY TAILORED to serve an IMPORTANT government interest (need not be least LRA, however); and
(3) leave open ALTERNATIVE CHANNELS of communication

NOTE: May still be overbroad, vague, or unfettered discretion

22
Q

Designated Public Forums

A

Government properties that gvt could close to speech, but chooses to open to speech

Same rules apply as PUblic Forums (content neutral, but TPM allowed)

23
Q

Limited Public Forums

A

Government properties that are limited to CERTAIN groups or dedicated to the discussion of only SOME subjects

Regulations must be:

(1) VIEWPOINT neutral; and
(2) REASONABLY RELATED to a LEGITIMATE purpose

24
Q

Nonpublic Forums

A

Government properties that the government constitutionally can, and does, close to speech. Not historically linked with speech and assembly and not held open.

Regulations must be:

(1) Viewpoint neutral; and
(2) reasonably related to a legitimate purpose

Ex: military bases, schools while class is in session, government workplaces, PO sidewalks, outside jails, airports

25
Q

Private Property

A

no FA right of access to private property for speech purposes

26
Q

Freedom of the Press

A

Generally no greater FA freedoms than private citizens.

27
Q

Access to Trials

A

FA guarantees the public and press a right to attend criminal and likely civil trials

BUT, this right may be OUTWEIGHED by an overriding interest found by the trial judge (children victims of sex offenses)

28
Q

Regulation or Tax of Press

A

Press and broadcasting companies may be subject to GENERAL business regulations or taxes, but cannot be TARGETED for special regulation or taxes

Tax or regulation must be CONTENT NEUTRAL, unless a COMPELLING justification can be shown

29
Q

Cable TV regulation

A

Content based regulations subject to SS

30
Q

Internet Regulation

A

Strict standard applies