First Amendment: Expression

Question 1

4 Reasons for Freedom of Speech

Answer 1

1. Furthers self-governance and democracy
2. Aids in Search for truth in marketplace of ideas.
3. Advances autonomy
4. Promotes tolerance

Question 2

Free Speech Tests

Answer 2

Strict Scrutiny (necessary to acheive a compelling govt interest) is used for content based restrictions. CB restrictions are presumptively invalid
-Content Based regulations (reg of entire topic) regulates based on viewpoint (specific ideology, or one side of topic)

Intermediate Scrutiny (substantially related to a compelling govt interest unrelated to supression of free speech that doesn’t substantially burden more speech than necessary) is used to regulate content neutral restrictions

Question 3

Secondary Effects

Answer 3

Govt cant refute presumption of invalidity of CB law by showing a content-neutral desire to avoid undesirable secondary effects.
Justification must be unrelated to the desire to suppress speech and it must be unique to the speech supressed as compared to the speech allowed.
City doesn’t need to prove 2d effects
Time place and manner restrictions cannot completely ban speech

Question 4

Principal Inquiry of Content Neutrality

Answer 4

Determine content neutrality by asking if the govt has adopted a regulation of speech b/c of agreement or disagreement with messages conveyed

Laws that are viewpoint neutral, but subject matter based are judged by strict scrutiny

Protecting the dignity of foreign governments is not sufficient to show a compelling interest

Question 5

Son of Sam Laws

Answer 5

Court struck down laws prohibiting prisoners from telling their stories about crime. Didn’t meet strict scrutiny.
Laws take away profit, discourages, chills, and interferes with people’s writing

Question 6

Examples of Govt action in 1st amendment

Answer 6

• Congress requirement to take into consideration general standards of decency for respect for diverse beliefs upheld. When claiming a law is CB, must show a substantial risk that it will lead to suppression of speech. Imprecise criteria for giving subsidies are permitted
• Govt can condition grants to libraries based on their acceptance of a condition to block porn

Question 7

Vagueness in 1st amendment

Answer 7

Vagueness is when laws regulating speech are void because they are so ambigious that a reasonable person cannot tell what expression is forbidden and what is allowed

Laws are uncon for vagueness b/c they violate Due Process = no notice

Claims of vaugeness can be brought without personally having standing if the law would uncon apply to someone else (court wants vauge less struck down)

(ex: “annoying” is an unascertainable standard. it is uncon to make it unlawful to interupt police in the performance of their duties)

Question 8

Overbreadth in 1st Amendment

Answer 8

Laws are uncon if it regulates substantially more speech than the Constitution allows to be regulated.

One can raise claim of overbreadth without personal standing so long as the law would uncon apply to someone else.

The law must be substanially overbroad to invalide==> there must be a realistic danger that the law will significantly compromise recognized 1st amendment protections.
Show a significant number is situations where speech is affected
Laws may be overbroad if they post great harm to particularly important speech

Doctrine does not apply to challenges of commercial speech regulations

Question 9

Prior Restraint

Answer 9

Admin and Judicial orders preventing speech from occuring (i.e can’t express in the first place (court orders, injuctions, licenses, permits)

There is a strong presumption against PR. Most disfavored reg.

State law prohibiting malicious and defamatory publications struck down as unlawful PR.
Any court order must be narrowly tailored, and must burden no more speech than is necessary

Any Property seized by the govt b/c of illegal activity is forfeited

Question 10

Collateral Bar Rule

Answer 10

Court orders must be obeyed until set aside
Disobeyance cannot be defended on uncon. grounds
If the admin/order is facially valid, then persons must test the law in court
If facially uncon or procedurally invalid (ex no DP), then the person can just do the prohibited activity

Question 11

New York Times Pentagon Papers Case

Answer 11

State alleged it wanted to prevent the NYT from publishing illegally obtained classified documents b/c of natl security, but there was no proof.

Douglas/Black believe no law should abridge freedom of speech ever

Brennan believes national intersts cannot override the 1st amendment, and there were no showings of imminent danger.

Stewart/White- Presidential power is enourmous, could have enjoined, but no proof of imminent harm

Marshall- President asking court to violate separation of powers

Burger/Blackmun, Harlan-dissent- case decided too quickly, needed more time.

Question 12

Nebraska Press factors for pretrial Prior Restraint

Answer 12

• Nature and exten of pretrial news
• Whether alternative measures would be likely to mitigate effects of unrestrained pretrial publicity
• How effectively a restraining order would operate
• Whether the gravity of evil (no fair trial) discounted its improbability, justifies invasion of free speech as is necessary to avoid danger

Question 13

Licensing as a Prior Restraint

Answer 13

Cities laws requiring a permit to give out written material is invalid on face, extremely broad

Law requiring permits to hand out material door to door is content neutral, but not narrowly tailored enough

Question 14

Watchtower 3 elements for constitutional licensing laws

Answer 14

If lacking any of these==> SS
If all there are met => IS

1. Must be content neutral; Govt msut have important reason
2. Must be clear standards leaving almost no discretion to govt (unfettered discretion is bad)
3. There must be procedural safeguards

Burden of proof rests on the censor; there must be prompt determinations, and judicial review of license denials.

Content neutral ordiances need not have procedural safeguards

where reg conditions operation of adult biz on nuetral, non discretionary criteria, and does not seek to censor, biz not entatitled to unusally speedy decision

Question 15

Speech and Restrictions

Answer 15

Civil liability for speech must meet 1st Amendment Scrutiny; fear of damage awards may be more inhibiting than prosecution

Question 16

Denial of Compensation

Answer 16

Uncon to impose financial burdens on speakers based on content of speech
Laws should not have a chilling effect on incentives to write and speak, nor should they diminish expressive output

Question 17

Compelling Speech

Answer 17

Board resolution struck down that compelled students to salute the US flag, saluting a flag is symbolic speech
Recruiters presence on campus doesn’t violate schools right to associated
Right not to speak includes the right not to disclose one’s identity when speaking. Anonymity is a sheild from the tyranny of majority

Question 18

Conditioning Benefits on Foregoing Speech

Answer 18

Govt cannot condition a benefit on requirement that a person forego a constitutional right to believe anything.

Loyalty oath for that veterans must sign to obtain tax exemption struck down

Court upheld govt choice to condition funds to clinics based on agreement not to give any info on abortions. Govt can send a message, it has legit interest in preservation of life.

Congress outlying LSC from starting lawsuits of welfare laws struck down. Viewpoint based restrictions not proper when govt itself doesn’t promote a message

Question 19

Unprotected Speech

Answer 19

Typs of speech that govt can regulate and prohibit. However, content based distinctions, even within this category, still must meet SS

Question 20

INcitement of Illegal Activity

Answer 20

Historical approaches to determining whether speech is incitement of illegal activity”

Past Tests

• Clear and Present Danger
• Reasonableness Test
• Risk Formula

Brandenburg Test (Current Rule)
mere abstract reaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violence
Conviction for incitement is only consitiutional if:
1)Imminent Harm
2) Likelihood of producing illegal action
3) Intent to cause imminent illegality (mere advocacy of illegal activity isn’t enough)

Question 21

Fighting Words

Answer 21

Concerned with the danger that the audience may be lawless in reaction AGAINST the speaker.
Speech that is
(1)directed at another and is likely to cause a violent response against the speaker and
(2)where its an insult to inflict immediate emotional harm

Question 22

3 Exceptions to Chaplinsky

Answer 22

(1) Narrow Fighting Words- must be insulting speech directed at individual likely to provoke a reasonable person to retaliate and cause a breach of peace
(2) (RAV case) Fighting words laws invalid as vague and overbroad: laws must be applied only to speech that is not protected by 1st amendment, otherwise its void (prohibition of opprobrius words or abusive language tend to be void)
(3) Narrow fighting words laws are content based: Laws must be narrow, but if they are too narrow, they’re content based.. Can’t pick out one subset of fighting words b/c that is content based.
- Content based distinctions w/in unprotected speech must meet SS but there are two exceptions: CB ok if (a) distintions direcetly advance reason why category of speech is unprotected OR (b) it isnt CB if directed at 2d effects
- /Fighting words laws upheld only if it doesn’t draw CB distinctions among types of speech

Question 23

Hostile Audience

Answer 23

Feiner Dissent is the rule:
If in name of preserving order
Govt/police can interfere with lawful public speaker
Must first make all reasonable efforts to protect them
This speach is not protected only if police cannot reasonably protect the speaker and the speaker is in clear and present danger

Question 24

Racist Speech/ Group Libel

Answer 24

Beauharnais- Court uphled law outlawing group libel based on race, color, or religion (prejudicial sterotypes) Today would be thrown out under RAV CAse

VA v Black- state law prohibiting burning of crosses to intimidate was struck down b/c the act may also have a symbolic meaning (racist speech protected as symbolic) and a state may not find prima facie intent from doing the act itself

Question 25

Obscene Speech

Answer 25

Obscenity isn’t protected b/c theres no social important, states can prohibit obsence films b/c they adversely affec the quality of community and public life

Miller Test

1. Must depict actual sexual conduct
2. In a patently offensive way
3. Appeals to prurient intests when Taken as a whole, based on local/community standards
4. Lacks serious literary, artistic, political, or scientific value based on national standard

Normal sex not included, must be hardcore sexual activity
Nudity alone isnt enough
Simulated sexual acts arent enough on their own

Question 26

Child pornography

Answer 26

Any depiction of children in sexual activities (not just intercourse and not necessarily obscene) can be prohibited
Concern is not with content, but with protecting the well being of children to prevent abuse and to prosecute abusers

Test:

1) Trier of fact need not find that material appeals to prurient interests
2) Not required that sexual conduct be portrayed in patently offensive way
3) Material need to be considered as a whole

If depictions don’t involve children, then they aren’t acutally exploited and the same rational doesn’t apply. Simulated images may lawful protected speech

Question 27

Protected/Low Value Sexual Speech

Answer 27

Not obscene and thus is protected, but it is of low value and thus the govt has latitude.

Question 28

Zoning Ordinance

Answer 28

State may legitimately use content of adult theatres as a basis for placing them in different classes than other pictures, just can’t ban completely. Concern with quality of life

Nude dancing alone is not inherently expressive speech; prohibition against nudity is simply regulating conduct and thus can be completely banned; if any expressive content is added, then this changes

Question 29

Techniques for Controlling Obscenity/ Child Porn

Answer 29

Adults have the right to possess obscene material, mere possession isn’t a crime. There isn’t a right to recieve obscene material though
Govt may prohibit private possession of child porn
Prior restraint of obscene materials are allowed. govt may required that movies obtain a license to be exhibited

Question 30

Less Protected Speech

Answer 30

Profranity & Indecent Speech may not be prohibited or punished simply because it mind offend others.
Radio and TV get least amount of 1st Amendment protection given history of FCC regulation, who can regulate indecedent, but not obscene
Captive audience doctrine: People have radio/tv on in their home all the time and do not expect indecent material.

FCC regulation restricting obscene phone calls struck down, no captive audience

Question 31

Commercial Speech

Answer 31

Commercial speech does no more than propose a commercial transaction (i.e. advertisements that reference a specific product, things published with economic motivations) Not afforded 1st amendment protection, but given substantial protection (IS)

Central Hudson Test- when govt may regulate commercial speech, a lesser constitutional protection (IS)

1. Whether the speech is protected by 1st amendment (not promoting illegal activity or is misleading/false)
2. Whether govt interest is substantial
3. Whether regulation directly advances govt interests
4. Whether it is not more extensive than is necessary to serve that interest (least restrictive v. narrowly tailored)

Question 32

Advertising and the first Amendment

Answer 32

Advertising of illegal activities or false and deceptive advertising is never protected.

States may not suppress disseminatinon of concedely truthful information about entirely lawful activity.

True ads that risk deception are not protected by the first amendment; laws that prohibit professionals from advertising or practicing under trade names, and restrictions on the ability of professionals to solicit clients are constitutional.

Question 33

Regulating Truthful Commercial Speech to Achieve Other Goals

Answer 33

Federal law prohibiting alcohol content on beer labels is uncon b/c although theres a public interest, govt can achieve goals in a manner less intrusive

Regulation of tabacco products is okay so long as it passes the last element of Hudson test and is not too extensive

Gambling

Question 34

Tortious Speech

Answer 34

Until NYT v. Sullivan, libel and slander was not 1st amendment protected
–Public Officials/candidates can only recover for defamation if (1) π is a public official (2) π proves with clear and convincing evidence (3) falsity of statement; and (4) actual malice (knowledge of falsity or reckless disregard for the truth)

Private Persons/public concern- can recover compensatory damages if there’s prof that the statements were false and ∆ was negligent. Presumed/punitive damages require proof of actual of actual malice. Rationale: public figures are well known, have media readily available, have voluntarily thrust themselves into the public. Private Persons don’t

Private person/private concern- state interest adequately supports awards of presumed/punitive damages absent a showing actual malice.

1st Amendment prevents liability for Public Disclosure of Private facts if the info was lawfully obtained from public records and is truthfully reported; unless there is a state interest of the highest order justifying liability

Question 35

Conduct and Political Speech

Answer 35

When is conduct communicative speech?

1. Must be intent to convey a specific message
2. And Must be substantial likelihood that a message would be understood by those recieving it

When May govt regulate conduct that communicates?
OBrien Test
1. Is is within constitutional power of govt
2. if it furthers an important or substantial govt interest
3. The govt interest is unrelated to the suppression of free expression,
4. The incidental restriction on alleged 1st Amendment freedom is no greater than is essential to the furtherance of that interest.

Question 36

Flag Desecration

Answer 36

Constitutionally protected form of speech;

1. First determine whether conduct constitutes expression.
2. Then decide whether regulation is related tp suppression of free expression.
   - -a. If not, then Obrien test controls
   - -b. If so, then strict scrutiny standards applies

Question 37

Spending money as political speech

Answer 37

Fed Elections Campaign- Court upheld provision limiting amt this person/group can give give (contributions) to candidate/party. Govt has compelling interest in stopping corruption or appearance of corruption.
But the court struck down, thus allowing, provisions on expenditures and personal spending. (dont relate to corruption and restict speech)
Bipartisan Reform Ace restricted soft money contributions. Contribution limits not required to meet SS
Govt can force people to disclose identity of donors (passes SS) unless it causes donors to be reviled

Question 38

Whar places are available for Speech

Answer 38

Public Forum, Limited Public Forum, Non-Public Forum

Question 39

Public Forum

Answer 39

Public Forums are sidewalks, parks, govt property that is constitutionally obligated to make available.
Streets and Parks are traditional public forums. Govts can regulate (but not prohibit) But must show that it is regulating for some substantial reason. (IS)
Banning leafletting to stob littering isnt narrowly tailored enough.

Govt can regulate speech only if:

1. Regulation is content neutral, or govt meets strict scrutiny for content-based reg;
2. Regulation must be reasonable time, place, manner, that serves important government interest and leaves open adequate alternatives for speech
3. Licensing or permit system must serve important purpose, give clear criteria that leaves almost no discretion to decisionmaker, and provides prompt determination and judicial review of denial
4. Regulation need not use lease restrictive alternative, but must be narrowly tailored to achieve purpose

Question 40

Limited Public Forum

Answer 40

(designated public forum)

Govt created public forums, in which it voluntarily, affirmatively creates a public forum on govt property

Question 41

Non Public Forum

Answer 41

Govt property that govt can close to ALL speech activities so long as regulation is reasonable and viewpoint neutral

1. County jails are not traditional public forums and unless state has opened them up for speech activities, it has discretion to object to those activies on viewpoint neutral grounds
2. Military Bases are not public forums, used as military institutions to train soldiers
3. Public transit advertising space is not a public forum; govt has commercial speach reasons for limiting space for commercial purposes
4. Airport terminals are not public forums. Govt doesn’t create public forums whenever members of the public are permitted to visit a place owned or operated by govt.
5. Sidewalk leading to and owned by USPS is not a public forum
6. Public forum created by govt through media==> Govt can prevent candidates from participating in a televisioned debate on govt owned channel so long as its viewpoint neutral and there are objective criteria. They can have editorial jornalism.

Question 42

Private Property

Answer 42

Private Property can never be used by others for speech. Court ultimately held that privately owned shopping centers are not public forums and are not protected under the 1st amendment. But states may allow consitutional protection for expression in shopping centers

Question 43

Speech in Authoritarian Environments

Answer 43

1. Military- Court upheld court marshall of dr/soldier who spoke out against the military and urged minorities to disregard orders. Theres a fundamental necessity for obedience, discipline, and order.
2. Prisons - govt may restrict or punish speech of prisoners if action is reasonably related to legit penological (punishment) interest. Cannot be a complete ban though. Also, prisoner’s ail cannot be kept from being sent out, UNLESS to other prisoners.
3. Schools - Tinker- unless school can show substantial disruption, then pure political speech cannot be limited

Question 44

Speech Rights for Govt Employees

Answer 44

If govt employees make statements pursuant to official duties, and within their job, then they are not speaking as citizens as for 1st Amendment purposes, they can be disciplined. If not acting in role and statements are made in public, then he can’t be disciplined.