Freedom of Expression Flashcards
What is protected by Freedom of Expression
The government may not interfere with or distort the marketplace of ideas, especially with respect to political speech
What is standard of analysis for content-based discrimination
Strict scruitny
What are exceptions to strict scrutiny regarding regulation of speech
- unprotected or low value speech
- government as speaker
- content-neutral conduct regulation
- content-neutral time, place and manner regulation
What is standard of review regarding laws affecting unprotected speech?
Regulations that relate to unprotected speech are subject to rational basis review
What is unprotected speech
- speech that advocates violence or unlawful action
- fighting words
- hostile audience speech
- obscene speech
5 defamatory speech
What is low-value speech
- commercial speech
- sexual or indecent speech
What is the nature of speech advocating violence or unlawful action?
Speech advocating violence or unlawful action may be regulated when advocacy is:
1. directed to inciting or producing imminent lawless action
2. likely to incite or produce such action
What are fighting words?
Speech is unprotected as fighting words when it is words likely to incite an ordinary citizen to commit immediate physical retaliation. The speech must be more than annoying or offensive and must be a direct and personal insult
What is hostile audience speech?
Unprotected hostile audience speech is speech that elicits an immediate violent response against the speaker by an audience.
When can hostile audience speech be regulated?
Speech may be regulated only after police make a reasonable effort to protect the speaker and guard against a “heckler’s veto” of unpopular speech
What is obscene speech?
Speech is unprotected as being obscene if:
1. the average person, applying local contemporary community standards would find the work, taken as a whole, appeals to the prurient interest
2. the work depicts or describes in a patently offensive way, sexual conduct that is specifically defined by state law
3. the work, taken as a whole, lacks serious literary, artistic, political or scientific value
What is defamatory standard regarding a private person and matter of private concern
Negligence only, no proof of malice
What is defamatory standard regarding a private person and matter of public concern
Must prove negligence about the truth or falsity of the statement , no malice required
What is defamation standard regarding public official or public figure regarding either matter of public or private concern
Must prove actual malice
-defined as knowledge of the falsity of the statement, or reckless disregard of the truth or falsity of the statement
What is defamation standard for private person suing the media regarding false-light invasion of privacy concerning matters of private interest?
Negligence?
What is defamation standard for private person suing the media regarding false-light invasion of privacy concerning matters of public interest?
Must prove actual malice
What is defamation standard for private person suing the media regarding false-light invasion of privacy concerning matter of either public or private interest that’s TRUE
Newspaper or broadcaster will never be liable for publishing truthful information obtained from a public record
When can government regulate commercial speech generally?
Government can regulate commercial speech that is false or deceptive, or that relates to an unlawful activity
When can government regulate commercial speech that isn’t false or deceptive and doesn’t relate to unlawful activity?
Regulation of commercial speech must:
1. serve substantial governmental interest
2. directly advance the substantial governmental interest
3. not be more extensive than is necessary to serve that interest
Is Sexual or indecent speech protected
Indecent speech is fully protected but can be regulated on the basis of secondary effects
What is required for secondary effects regulation of indecent speech?
Secondary effects regulations must serve a substantial government interest and leave open reasonable alternative channels of communication
What are restrictions upon government as speaker
When government is the speaker, the government may say what it wants
When is conduct regulation regarding expression allowed
A law that regulates conduct and creates an incidental burden on speech is allowable if:
1. the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression
2. the incidental restriction on speech is no greater than necessary to further that interest
What are time, place, and manner regulation requirements for public forums
Regulations must:
1. be content-neutral as to both subject matter and viewpoint
2. be narrowly tailored to serve an important government interest
3. leave open alternative channels of communication
