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ConLaw > First Amendment - Freedom of Expression > Flashcards

First Amendment - Freedom of Expression Flashcards

(47 cards)

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1
Q

Content Based

A

Government restricts speech because of its content (SS)

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2
Q

Secondary Effects (meaning and scrutiny)

A

Regulation’s purpose is not to suppress speech itself but to address secondary effects of speech like crime (IS: TPM)

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3
Q

(3) Exceptions to CB SS

A

(1) unprotected speech
(2) secondary effects
(3) conduct > speech

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4
Q

Content Neutral (meaning and scrutiny)

A

Government regulation has nothing to do with content of speech (IS). Secondary Effects fall into this category.

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5
Q

Viewpoint Neutrality (Test)

A

Substitute the opposite viewpoint or a different ideology for the targeted one and see if the expression would be permitted

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6
Q

Subject Matter Neutrality

A

Govt may not select which issues worth discussing
May NOT:
-prohibit discussing an entire topic
-prohibit discussion of all topics but chosen few

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7
Q

(4) 1st AM Core Analytical Framework

A

(1) Preliminary Issues: constitutional source, state action doctrine
(2) IS SPEECH INFRINGED?
(3) Problems with regulation?
(vague, overbreadth)
(4) EST. and APPLY Scrutiny
(SS, IS, unprotected)

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8
Q

(3) What triggers IS?

A

(1) Content Neutral; (2) time, place, and manner restrictions; (3) conduct that communicates

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9
Q

Renton: How a time, place, and manner restriction protects secondary effects

A

Did not ban adult theaters, but their location, thus mitigating secondary effects of crime associated with such theaters

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10
Q

(4) IS test for Content Neutral

A

(1) is regulation content neutral
(2) narrowly tailored to serve
(3) a significant/important govt interest AND
(4) leaves alternative channels of communication

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11
Q

(3) Valid Govt Argument for CB restriction as CN restriction

A

(1) HISTORY: has govt used means of expression to speak to public?
(2) REASONABLE OBSERVE: would view it as govt speech
(3) CONTROL: does gov retain control over speech?

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12
Q

Vagueness

A

A law is constitutionally vague if a *reasonable person cannot tell what speech is prohibited and what law is permitted
-is the proscribed activity clearly defined by the regulation?

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13
Q

(2) ISSUES with vagueness

A

(1) fails to give fair warning
(2) invites arbitrary and discriminatory enforcement

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14
Q

Overbreadth

A

A law is constitutionally overbroad if it regulates more speech than the constitution allows

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15
Q

ISSUES with Overbreadth

A

rights of 3rd parties not before court are violated because the overbroad statutes improperly regulates their speech

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16
Q

Standing under Overbreath

A

Standard is loosened: rights of 3rd parties not before court are violated because the overbroad statute improperly regulates their speech

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17
Q

(2) Limits to Overbreadth

A

(1) doesn’t apply to commercial speech
(2) can be saved by reasonable limiting construction from authoritative court

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18
Q

(2) Prior Restraints

A

(1) An administrative rule requiring license or permit before one may engage in expression, or (2) a judicial order directing an individual not to engage in expression (threat of contempt)

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19
Q

(4 or more) Permitted Prior Restraints

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A

(1) National Security Concerns
(2) Obscenity Laws
(3) Inciting Violence
(4) prevent insurrection
*MUST MEET SS

20
Q

(6) SS for Prior Restraint

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A

govt must show
(1) a compelling interest,
(2) narrow tailoring, and
that the (3) speech poses
(a) immediate, (b) direct, and (c) irreparable harm.
(4) law must have procedural safeguards

21
Q

Collateral Bar Rule

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A

you must obey a court order/law, even if it’s unconstitutional, until you get it overturned through proper channels.
-challenge in court rather than defy

22
Q

(5 or more) Unprotected Speech

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A

(1) Fighting words
(2) Hostile Audience
(3) Hate Speech
(4) incitement to illegal activity
(5) True threats

23
Q

(4) Incitement to Illegal Activity Brandenburg Test

Study These Flashcards
A

(1) Advocacy is directed (intent)
(2) to inciting or producing imminent (imminence)
(3) lawless action (action not belief)
(4) likely to incite/produce such action (likelihood/probability)

24
Q

(2*) Fighting Words (chaplinsky)

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A

(1) directed at hearer which by their very utterance
(2) tend to inflict injury or incite violence
*(reasonable person standard: what reas person would understand as words likely to cause fight)

25
(2) Fighting Word Bans that FAIL
(1) If law bans particular message (CB) and/or (2) if law bans fighting speech directed at particular group
26
(2) Hostile Audience (Feiner) Rule (No Heckler's Veto)
Police may suppress speaker only if: (1) breach of peace imminent/ crowd = unmanageable (2) must try to control crowd first
27
(2) True Threats Standard
(1) OBJECTIVE: whether a reasonable person would interpret serious expression of intent to harm/assault (2) SUBJECTIVE: recklessness, must prove D had subj understanding of statements as threats.
28
General Bans on Unprotected Speech
Impermissible CB
29
Worst Examples
state may impose ban on particular instances of unprotected speech if it contains only worst examples
30
Penalty Enhancing Statutes
crimes punished more severely because of bias motive are constitutional
31
All Intimidating acts
state may punish all instances of a particular expressive act done with intent to intimidate, even if state does not punish other types of intimidating acts
32
(3) Miller Test - What is Obscene
(1) average person, applying contemporary community standards sees work on whole appealing to prurient interest (2) work depicts sexual conduct specifically defined by applicable law AND (3) work on whole lacks artistic, political, scientific value
33
(2) Child Porn Prohibitions - Ferber Analysis
Statute must: (1) be limited to works that depict sexual conduct with children (even if not obscene w/out children) AND (2) include actual children under certain age (SS for virtual or indirect harm to kids)
34
(2) Child Porn Requires these 2 analysis
(1) Miller + (2) Ferber
35
Protected but Low Value Speech
If not obscene but sexual or offensive is still protected CB (SS), but govt can regulate through zoning ordinance
36
Nude Dancing
Can be prohibited (Erie)
37
Scarcity Theory for TV
broadcast spectrum is a limited, scarce public source and protecting what children see is a compelling interest
38
Sable Communications
Dial porn regulated to late night channels. While protecting children's viewing is compelling, blocking dial porn entirely is not narrowly tailored because dial porn can play late at night.
39
(2) Spence Test (speech or conduct)
(1) *speaker intent* to convey a particularized message (2) *listener knowledge* high likelihood it would be understood by those who view it
40
(2) Triggering Obrien Test (conduct as speech)
Is speech regulation attempt to suppress message? (1) yes -> SS (2) No -> O'Brien (IS)
41
(4) O'Brien IS test (conduct as speech)
(1) regulation w/ scope of govt power (fed/state) (2) does the regulation further important or subst govt interest (3) is that interest unrelated to suppression of speech (4) is the incidental effect on speech no greater than necessary?
42
Campaign Contributions
1st AM concerns what speech is being made, not who is saying it. Corporate speech is protected, but govt can require disclosure regarding expenditures
43
Central Hudson Test on Const Restrictions on Ads and 1st AM
(1) laws outlaw advertising illegal activity (2) prohibition on false and deceptive ads (3) true ads that inherently risk becoming false or deceptive (4) laws that limit ads to achieve other goals like curb alch/tob/gamb use
44
CB reg in Traditional or Designated Public Forum
SS will apply for protected speech
45
CN (time, place, manner) reg in Traditional or Designated Forum
IS: (1) important govt interest + (2) Narrowly Tailored (reasonable fit, not most restrictive) + (3) alternative channel of communication
46
(3) CB restriction in Limited Public Forum and Non-public Forum REASONABLE RESTRICTION TEST
(1) distinctions based on subj matter and speaker ID okay if, (a) (reas) regulation is reasonable in light of forum purpose served (b) (viewpoint neutral) not an effort to suppress speech becuz govt opposes speaker POV
47
(5) Licensing and Permits in Public Forums
Govt may require license if: (1) there is important reason for licensing (2) clear criteria = no authority discretion (3) procedural safeguards such as (a) prompt determination of requests and (b) judicial review of denials

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