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Flashcards in Free Speech Deck (22):

What does the 1st Amendment say about speech?

Congress shall make no law … abridging the freedom of speech.

A fundamental right.


What is the focus on which speech can be protected, and under what circumstances.

Can regulate time, place, and manner.

Not Protected - bribery, perjury, antitrust conspiracies, solicitation to murder

Nominally unprotected - incitement, fighting words, etc.

Less protected - sexually explicit, commercially …


What are the three types of Speech Restrictions?

• Content neutral - cannot demonstrate at all. E.g., cannot demonstrate in the park. (Intermediate scrutiny)

• Content based speech - laws that distinguish between favored and disfavored speech on the basis of the expressed ideas or views. (Turner) Cannot demonstrate against big banks. (Strict Scrutiny)
○ Generally not allowed. Fear the government will allow some views, and not others and control the information. Can distort public debate.
○ What you are saying matters.
○ Based on the type of content, e.g. no political speech (does not matter what side you are on)

• Viewpoint - Government cannot regulate speech that is based on a certain viewpoint, no antiwar demonstrations in the park. (look at slides for class)


Ward v. Rock Against Racism

Challenge to New York City regulation mandating the use of city-provided sound systems and technicians to control the volume of concerts at the bankshell in Central Park. (Upheld the regulation)

Regulation of a public forum does not need to use the least restrictive alternative, but must be narrowly tailored.

Narrow tailoring is satisfied "so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."


Cohen v. CA

general rule for offensive speech - a listen must avert his eyes or ears if they are offended.


Frisby v. Schultz

flat ban on picketing in front of a particular residence upheld.
• Competing value of Free Speech and Privacy (of a homeowner/resident)
• Anti-abortion doctor's home was picketed by a group.
• Could picket in the neighborhood, but must go up and down the street and not stay in front of one house (alternative channel)


Madsen v. Women's Health Center

Florida State court injunction against protestors and limited activities of an antiabortion protectors on the public streets outside an abortion clinic. Content Neutral

Distinction between injunctions and laws - Injunction is against a certain group.

Whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest. Court can allow some restrictions and strike down those that are not narrowly tailored.

Scalia said should be strict scrutiny because the injunction was against an anti-arbortion group and thus is content based.


Hill v. Colorado

Statute made it unlawful to approach anyone in front of an abortion clinic to hand them leaflets. (limited approach without consent at abortion clinics)

Regulations in public forums do not violate the first amendment if they are time, place, and manner restrictions that substantially advance an important interest and leave open alternative channels of communication.


What is overbreadth?

a law is substantially overbreadth if it regulates substantially more speech than the 1st Amendment allows (the test).
• Third party standing is allowed - a person to whom the law can be constitutionally applied can argue that it is unconstitutional as applied to others.
• Guilty person can go free if they can show the statute affects restricts too much speech for other people.
• "Chilling Effect" – court is concerned that speech will be chilled for fear of criminal prosecution


Broadrick v. OK

Law prohibited political activities by government employees. Targeted at collecting money at work, challengers claimed it could prohibit everything, including wearing a campaign button.
• Court refused to strike down - 1) concern was about conduct and not speech, 2) conduct could be analyzed on a case by case basis

** An overbroad law prohibiting political activity does not violate the First Amendment if determinations of unconstitutionality can be made on a case by case basis.


Virginia v. Hicks

Challenge to the exclusion from public housing for people who lacked a legitimate business of social purpose (to visit the housing) (aimed at crime control). Challenge that this gave too much discretion to keep people out.
• Conduct case - prevented people from walking into the building. Overbroad.


U.S. v. Stevens

prohibited the creation, sale or possession of audio or visual depiction of torturing or killing animals, challenged as overbroad. Law designed to prevent cruelty to animals (aimed at crush videos and dog fighting). Could including hunting or killing animals for food.


What is an exception to the overbreadth doctrine?

Commercial Speech
• Chilling is not a concern because there is an economic reason


What is Vagueness?

Law that restricts speech is unconstitutionally vague if a reasonable person cannot not tell what is prohibited and what is permitted.
• Can chill speech
• Too much discretion to law enforcement.


What must licensing and permit systems have to avoid the concern about prior restraints on speech?

1. An important reason,
2. Clear criteria, and
3. Procedural safeguards i.e. prompt determinations and judicial review of denials.


What is the Collateral Bar Rule?

Violation for an unconstitutional law will not be punished, but violation of a procedurally proper unconstitutional prior restraint will be..


U.S. v. O'Brien

Draft card burning

The government can regulate conduct that communicates to achieve an 1) important, 2) non-speech purpose if the impact on communication is 3) no more than necessary to achieve this purpose (must know the actual purpose)


Barnette case

Jehovah's witnesses filed suit over required flag salute claiming it conflicted with their religious views and freedom of speech.
• Pledge of Allegiance is requiring certain speech.

Court found Freedom of Speech includes the right not to speak.) Cannot force someone into nationalism.)


Tinker Case

Students suspended for black armbands.

School claimed an interest in avoiding controversy.
• Not pure speech - "conduct that communicates"

• Court found the purpose was not enough. Should not be avoiding controversy amongst students.
• "Students do not shed their constitutional rights at the schoolhouse gate."
• Silent passive expression of opinion. No disturbance or disorder.
• School can only regulate in this way if there is actual harm.
• Rights extend outside the classroom.

School authorities can only ban or punish protected speech that materially disrupts class work, involves substantial disorder, or invades others’ rights.


Bethel School District v. Fraser

Student suspended for making sexual innuendos at a school assembly for student elections.

No violation. Difference between political and sexual speech. OK to teach students the boundaries of socially acceptable behavior.


Hazelwood School District v. Kuhlmeier

Court said the school can exercise control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.
• Newspaper is not a public forum.
• Distinguished Tinker
○ Others could view the paper as expressing the school's "impremature" (a mark/seal)
○ The newspaper was part of the pedagogy of the school.


Morse v. Frederick

One student held up a banner that said "bong hits for Jesus." Principle took the banner and student was suspended.
• Court said this was ok.
• Even though off school grounds, it was a school activity supervised by teachers.
• Not protected speech - Banner could be interpreted as promoting illegal drug use, court said this was a reasonable interpretation.
○ Viewpoint based - cannot advocate use of illegal drugs

Think about how technology impacts these decisions and what schools can regulate.