First Amendment - Speech

Question 1

Content Based v. Content Neutral Restrictions

Answer 1

Content-based restrictions on speech must meet strict scrutiny. There are two types of content-based restrictions: subject matter restrictions and viewpoint restrictions.

Content-neutral laws burdening speech generally need only meet intermediate scrutiny.

Question 2

Prior Restraints

Answer 2

In order to allow a prior restraint, the government must show a special societal harm that justifies the restraint.

Then, even if the conduct is that which can be subject to prior restraint, the court requires three procedural safeguards: (1) the standards must narrowly drawn, reasonable, and definite so as to include only prohibitable speech; (2) the government must promptly seek an injunction; and (3) there must be a prompt determinations for license requests and judicial review.

Question 3

Vagueness and Overbreadth

Answer 3

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Question 4

Symbolic Speech

Answer 4

The regulation of conduct is upheld if (1) the regulation is within the constitutional power of the government; (2) it furthers an important government interest; (3) the government interest is unrelated to the suppression of speech; and (4) the incidental burden on speech is no greater than necessary.

Question 5

Ways of Striking Down Speech Regulations

Answer 5

(1) Content-based/Content-neutral; (2) Prior Restraints; (3) Vagueness and Overbreadth; and (4) Symbolic Speech

Question 6

Types of Unprotected and Less Protected Speech

Answer 6

(1) Incitement of illegal activity
(2) Obscenity and sexually-oriented speech
(3) Commercial speech
(4) Defamation
(5) Speech in prisons
(6) Funding and speech

Question 7

Commercial Speech

Answer 7

If the commercial speech involves a lawful activity and is not misleading or fraudulent, any regulation of that speech is valid only if: (1) it serves a substantial government interest; (2) it directly advances the asserted interest; and (3) it is narrowly tailored to serve the substantial interest.

Question 8

Obscenity

Answer 8

To be obscene, the material must (to local community standards):

(1) appeal to the prurient (shameful or morbid) interest in sex;
(2) the material must be patently offensive under the law prohibiting obscenity;
(3) and taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (as determined by a national standard)

Question 9

Places Available for Speech

Answer 9

(1) Public Forums: government properties that the government is constitutionally required to make available for speech (sidewalks and parks).
(2) Designated Public Forums: Government properties that the government could close to speech, but chooses to open to speech. The same rules apply as to public forums.
(3) Limited Public Forums: Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
(4) Nonpublic Forums: Government properties that the government constitutionally can and does close to limited public forums.
(5) Private Property: There is no right of access to private property for speech purposes

Question 10

Regulating Speech in Public Forums and Designated Public Forums

Answer 10

(1) It must be content neutral;
(2) it must be narrowly tailored to serve a significant government interest; and
(3) it must leave open alternative channels of communication - strict scrutiny

Question 11

Regulating Speech in Limited and Nonpublic Forums

Answer 11

Regulations will be upheld if they are: (1) viewpoint neutral; and (2) reasonably related to a legitimate government purpose. - rational basis