First Amendment: Freedom of Speech

Question 1

What are the 5 places available for speech?

Answer 1

Public Forums, Designated Public Forums, Limited Public Forums, and Private Property

Question 2

What is a Public Forum? Name examples.

Answer 2

Public forums are places the government is constitutionally required to make available for speech. Examples include parks and sidewalks.

Question 3

What is the test when a regulation restricting speech in a Public Forum is not content-neutral?

Answer 3

Content restrictive regulations must meet a strict scrutiny test in public forms.

Question 4

What is the test when a regulation restricting speech in a Public forum is content-neutral?

Answer 4

Regulations must be a time, place, or manner regulations that serves an important government purpose AND leaves open adequate alternative places for communication.

Question 5

If there is a content-neutral speech regulation in a public forum, does the regulation need to use the least restrictive alternative?

Answer 5

No, as long as the regulation is narrowly tailored.

Question 6

Can city officials have discretion to set permit fees for public demonstrations?

Answer 6

Absolutely not. These laws are unconstitutional because it means that a city official has discretion to discriminate based on content.

Question 7

What is a Designated Forum? Name examples.

Answer 7

A Designated Public Forum is a government property that the government could close to speech but makes open to speech.

Tip: This is like a Public Form…the property must be open for all speech.

Ex: Schools opened after hours for all school clubs or school events like a soccer game over the weekend.

Question 8

What is the test for a regulation restricting speech in a designated public forum is NOT content-neutral?

Answer 8

Strict Scrutiny: If a speech restriction in public or designated public forum is not content-neutral, strict scrutiny applies.

Question 9

What is the test for a regulation restricting speech in a designated public forum is content-neutral?

Answer 9

Its the same as a Public Forum: Regulations must be a time, place, or manner regulations that serves an important government purpose AND leaves open adequate alternative places for communication.

Question 10

If there is a content-neutral speech regulation in a designated public forum, does the regulation need to use the least restrictive alternative?

Answer 10

No, the regulation must be narrowly tailored. It’s the same as the test for Public Forums!

Question 11

What is a Limited Public Forum? Name examples.

Answer 11

Limited Public Forums are government properties that at limited to certain groups OR dedicated to the discussion of only some subjects.

Examples: City buses only allowed to display commercial adds or when City Hall is opened for a community debate on certain issues.

Tip: If speech is limited or opened for a singular purpose regarding speech, it is likely a limited public forum.

Question 12

In a Limited Public Forum, how can the Government regulate speech?

Answer 12

The regulation must be reasonable and viewpoint neutral.

Tip: this is a low bar

Question 13

What is a Non-Public Forum? Name examples.

Answer 13

A Non-Public Forum is a government property that the government constitutionally can and does close to speech.

Ex: Military bases, airports, and sidewalks on postoffice property.

Question 14

In a Non-Public Forum, how can the Government regulate speech?

Answer 14

The same way it does a Limited Public Forum: the regulation must be reasonable and viewpoint neutral.

Question 15

On Private Property, can the Government regulate speech under the First Amendment?

Answer 15

No, the First Amendment doesn’t apply here for the purposes of speech.

Ex: Walmart.

Question 16

What does “Content” include in determining whether a regulation is content-neutral or content-based?

Answer 16

Content includes viewpoint and subject matter. A law that regulations either viewpoint or subject matter will be considered a content-based regulation.

Question 17

Generally, if a regulation is content-neutral, what is the test?

Answer 17

Intermediate Scrutiny

Tip: Think regulations in Public Forums…the regulation must serve and important government purpose and leave open adequate alternative places for communication.

Question 18

Generally, if a regulation is content-based, what is the test?

Answer 18

Strict Scrutiny: The regulation must be necessary to achieve a compelling government interest.

Exception: In a non-public or limited forum when a regulation is viewpoint-neutral but restricts subject-matter

Question 19

What is prior restraint of free speech? Name two examples.

Answer 19

Prior restraint stops speech before it occurs.

Examples: A Court order (Gag order) or a license for speech.

Question 20

What is the test when a Court order suppresses speech?

Answer 20

Strict Scrutiny must be met

Question 21

When a Court order is procedurally proper but ultimately unconstitutional and a person violates the Court order…may that person protected by the First Amendment?

Answer 21

No, procedurally proper Court orders must be complied with.

Question 22

What is the test when the Government requires a license for speech?

Answer 22

There must be an important reason for the licensing requirement and clear criteria leaving almost no discretion to the licensing authority. Additionally, licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.

Question 23

What are the two challenges a person can make to the construction of a speech regulation or law?

Answer 23

Void for Vagueness or Overbreadth (Unconstitutional as applied to me)

Question 24

When is a law void for Vagueness?

Answer 24

When a reasonable person cannot tell what speech is prohibited and what is allowed, the law is unconstitutionally vague.

Question 25

When is a law Overbroad?

Answer 25

If it regulates substantially more speech than the constitution allows to be regulated. Tip: I think this is generally used in the "law is unconstitutional as applied to my protected speech argument"

Question 26

Can a law regulate fighting words? In other words, can you make a statute that criminalizes the use of fighting words?

Answer 26

No, the law is both Vague and Overbroad.

Question 27

Are fighting words protected speech?

Answer 27

No, fighting words are not constitutionally protected. While you cannot regulate fighting words, they are not constitutionally protected as free speech.

Question 28

What is symbolic speech? Give examples (5).

Answer 28

Symbolic speech is non-verbal conduct that is meant to communicate a message. Examples: Flag burning, draft card burning, nude dancing, cross burning, and political contributions?

Question 29

What is the test used when the Government regulates symbolic speech?

Answer 29

______? must show an important interest unrelated to the suppression of the message and the impact on communication is no greater than necessary to achieve that purpose.

Question 30

Is all symbolic speech constitutionally protected?

Answer 30

No, case law has demonstrated that not all symbolic speech is constitutionally protected.

Question 31

Do these two acts constitute constitutionally protected symbolic speech: Flag burning and draft-card burning

Answer 31

Flag burning is constitutionally protected speech. Draft-card burning is not constitutionally protected speech: SCOTUS has said that there is an important interest in maintaing draft cards for purposes of war unrelated to the suppression of the message.

Question 32

Is nude dancing protected symbolic speech?

Answer 32

No, local governments can regulate nude-dancing

Question 33

Is cross burning protected symbolic speech?

Answer 33

Yes, unless it is done with the intent to threaten. Tip: Think KKK burning cross in secluded field v. in a black person's yard.

Question 34

Is anonymous speech protected?

Answer 34

Yes.

Question 35

What does it mean for speech to be "protected" by the First Amendment?

Answer 35

It only means that the First Amendment analysis applies. You must use the relevant tests if the speech is protected.

Question 36

Are these two regulations generally constitutional: limits on contributions in election campaigns AND limits on expenditures in election campaigns?

Answer 36

Contribution limits: generally constitutional | Expenditure limites: generally unconstitutional

Question 37

What 4 types of speech are not protected or less protected under the First Amendment?

Answer 37

1) Speech that Incites Illegal Activity 2) Obscene and sexually oriented speech 3) Commercial Speech 4) Defamatory Speech

Question 38

When a regulation punishes speech that "Incites Illegal Activity," what is the test?

Answer 38

Two part test: if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

Question 39

When a regulation punishes "Obsecenities and Sexually Oriented Speech," what is the test?

Answer 39

Three part test: 1) Material must appeal to the prurient interest, and 2) Material must be patently offense under the law prohibiting the obscenity, and 3) Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value

Question 40

Can the government punish private possession of obscene materials?

Answer 40

Not unless it's child porn.

Question 41

Can the government regulate the location of adult stores with zoning ordinances?

Answer 41

Yes

Question 42

Can the government seize the assets of a business convicted of violating obscenity laws?

Answer 42

Yes

Question 43

Is profane and indecent speech protected by the First Amendment?

Answer 43

Yes, it is generally protected with two exceptions. Two Exceptions: 1) over the broadcast media 2) In schools

Question 44

Generally, what is the test when a law regulates Commercial Speech?

Answer 44

Intermediate Scrutiny is generally used unless 1) the advertisement is for illegal means or is false 2) Speech that inherently risks deception

Question 45

What are two types of Commercial Speech that "inherently risk deception" and are constitutionally regulated?

Answer 45

1) Adverstising or practicing under a trade name "Sight for Sore Eyes" 2) In-person solicitation for profit by attorneys

Question 46

Do regulations of Commercial Speech need to be the least restrictive alternative?

Answer 46

No, only narrowly tailored.