Freedom of Speech and Assembly

Question 1

What is “speech” for purposes of the First Amendment?

Answer 1

Speech includes words, symbols, and expressive conduct.

Question 2

What is “expressive conduct” in the context of First Amendment speech protections?

Answer 2

Expressive conduct is any kind of conduct that is either inherently expressive, or conduct that is:
(1) Intended to convey a message, and

(2) Reasonably likely to be perceived as conveying a message

Question 3

What are the categories of unprotected speech?

Answer 3

(1) Incitement
(2) Fighting words
(3) True threats
(4) Obscenity

Question 4

What are the categories of partially protected speech?

Answer 4

(1) Defamation

(2) Commercial speech

Question 5

When will speech be considered “incitement”? Low bar or high bar?

Answer 5

Speech can be censored as incitement if it is:
(1) Intended to produce imminent lawless action and

(2) Likely to produce such action

Both prongs must be satisfied, and this is a very high bar to meet.

Question 6

HYPO: Urging Ku Klux Klan members at a rural rally to take “revengence” if the government “continues to suppress the white . . . race.” Is this incitement?

Answer 6

No. This is protected political speech. The words do not convey an intent to produce imminent lawless action. At worst, the words threaten violence at some vague, indefinite point in the future, and only conditionally.

Question 7

HYPO: Urging angry Ku Klux Klan members in front of a black rape suspect’s home to “take action.” Is this incitement?

Answer 7

Yes. Given the context, the call to “take action” exhibits an intent to produce imminent lawless action, and was likely to produce such action.

Question 8

When will speech be considered to be “fighting words”?

Answer 8

Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are merely annoying won’t do.

Question 9

HYPO: Calling someone in a bar argument a “motherfucker” to their face. Are these fighting words?

Answer 9

Yes. These words are likely to provoke an immediate physical response. The speaker could be charged with something like inciting a breach of the peace.

Question 10

HYPO: Wearing a jacket in the hallway of a courthouse that says “Fuck the Draft.” Are these fighting words?

Answer 10

No. Expressing opposition to the draft is political speech, and merely using “fuck” doesn’t transform the statement into fighting words.

Question 11

When will speech be considered a “true threat”?

Answer 11

If the speech is intended to convey to someone a serious threat of bodily harm

Question 12

HYPO: Burning a cross at a Ku Klux Klan rally. Is this a true threat?

Answer 12

No, not without more. Cross burning is protected political speech that conveys a hateful ideological message, but is not a particularized threat against someone.

Question 13

HYPO: Burning a cross in a Black neighbor’s yard. Is this a true threat?

Answer 13

Yes. This is a particularized threat when taking together the entire context.

Question 14

When will speech be considered “obscene”?

Answer 14

Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
(1) Appeals to the prurient interest in sex (i.e., it is meant to sexual arouse), using a contemporary community standard

(2) Is patently offensive (i.e., whether it is grossly offensive) under contemporary community standards AND
(3) Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard

Question 15

True or false: Private possession of obscene material in the home can be punished. Explain.

Answer 15

False. Private possession of obscene material in the home cannot be punished, except for child pornography. However, the protection does not extend beyond the home.

Question 16

True or false: The government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children.

Answer 16

True

Question 17

True or false: The government may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that actually uses young-looking adults or computer-generated images.

Answer 17

True

Question 18

Under what circumstances may a land use or zoning regulation limit the location or size of adult entertainment establishments?

Answer 18

If the regulation is designed to reduce the secondary effects of such businesses (e.g., to protect children and unwilling adults from exposure, or to prevent neighborhood crime and decay).

However, these regulations cannot ban such establishments altogether.

Question 19

If a defamatory statement is about a public official or public figure, or involves a matter of public concern, the First Amendment requires the plaintiff to prove:

Answer 19

(1) All the elements of defamation, PLUS falsity, AND

(2) Some degree of fault

Question 20

If the plaintiff in a defamation suit is a public official or figure, regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is _______.

Answer 20

Actual malice

Question 21

What is required to show “actual malice” in the context of defamation?

Answer 21

The plaintiff must prove by clear and convincing evidence that the alleged defamatory statement was made with:
(1) Knowledge that it was false OR

(2) Reckless disregard as to its truth or falsity

Question 22

Who are “public officials” in the context of defamation?

Answer 22

Public officials include people:
(1) Holding or running for elective office (at any level)

(2) Public employees in positions of public importance (e.g., prosecutors, school principals, police officers)

Question 23

Who are “public figures” in the context of defamation?

Answer 23

Public figures are people who have:
(1) Assumed roles of prominence in society

(2) Achieved pervasive fame and notoriety
(3) Thrust themselves into particular public controversies to influence their resolution

Question 24

What are “matters of public concern” in the context of defamation?

Answer 24

Matters of public concern are issues important to society or democracy.

Question 25

How do courts determine whether something is a “matter of public concern” in the context of defamation?

Answer 25

Courts decide on a case-by-case basis whether the defamatory statement involves a matter of public concern, looking at the content, form, and context of the statement.

Question 26

If the plaintiff in a defamation case is a private figure and the defamatory statement involves a matter of public concern, what may the plaintiff recover if they show only negligence?

Answer 26

Actual damages

Question 27

If the plaintiff in a defamation case is a private figure and the defamatory statement involves a matter of public concern, what may the plaintiff recover if they show actual malice?

Answer 27

Punitive damages or presumed damages (automatic statutory damages)

Question 28

True or false: If the plaintiff in a defamation case is a private figure suing on a matter of private concern, then the First Amendment is not involved.

Answer 28

True

Question 29

If the plaintiff in a defamation case is a private figure suing on a matter of private concern, what may the plaintiff recover?

Answer 29

Any damages allowed by state law, even if they can’t show actual malice

Question 30

In a tort action for intentional infliction of emotional distress (or some other tort like invasion of the right to privacy) where the plaintiff is a public figure or official, or where the speech is on a matter of public concern, what is the appropriate evidentiary standard to prove the claim?

Answer 30

Actual malice

Question 31

Commercial speech (e.g., advertisements, promotions of products and services, brand marketing) is not protected if it is:

Answer 31

(1) False,
(2) Misleading, or
(3) About illegal products or services

Question 32

Absent evidence that commercial speech is unprotected (e.g., that it is false, misleading, or about illegal products or services), Any regulation of commercial speech will be upheld only if it:

Answer 32

(1) Serves a substantial government interest,
(2) Directly advances that interest, and
(3) Is narrowly tailored to serve that interest

Question 33

True or false: “Narrowly tailored” in the context of commercial speech regulation means that the least restrictive means of accomplishing the legislative goal is required. Explain.

Answer 33

False. There just needs to be a reasonable fit between the goal and the means chosen.

Question 34

True or false: Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of a legitimate government interest.

Answer 34

True

Question 35

True or false: The government may not require commercial advertisers to make disclosures, even if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

Answer 35

False

Question 36

HYPO: Ban on deceptive trade practices, including false or misleading ads. Is this valid?

Answer 36

Yes. Commercial speech is not protected by the First Amendment if it is false or misleading.

Question 37

HYPO: Ban on attorney in-person solicitation for pecuniary gain. Is this valid?

Answer 37

Yes. In-person advertising of services is protected commercial speech as long as it’s truthful. However, the Court has held that the government has a substantial interest in consumer protection by preventing attorneys from persuading people in potentially vulnerable situations to utilize an attorney’s services for the attorney’s own personal gain. The ban directly advances that interest and is narrowly tailored to serve that interest.

Question 38

HYPO: Ban on truthful price advertising. Is this valid?

Answer 38

No. There is no substantial government interest in preventing consumers from learning truthful information about a product, including its price.

Question 39

HYPO: Compelled disclosure of prescription drug side effects. Is this valid?

Answer 39

Yes. There is a substantial government interest in protecting consumers by compelling drug companies to disclose potentially harmful side effects of their drugs, and this regulation both directly advances and is narrowly tailored to serve that interest.

Question 40

When will a regulation be considered “content-based” in the context of the First Amendment?

Answer 40

If it restricts speech based on the subject matter or viewpoint of the speech

Question 41

When will a regulation be considered “content-neutral” in the context of the First Amendment?

Answer 41

If the restriction is both subject matter-neutral and viewpoint-neutral

Question 42

What is the appropriate standard of review for content-based speech regulations? Is there a legal presumption regarding constitutionality?

Answer 42

Strict scrutiny.

Content-based regulations are presumptively unconstitutional unless they fall within one of the categories of unprotected speech.

Question 43

What is the appropriate standard of review for content-neutral speech regulations? Explain.

Answer 43

Intermediate scrutiny. The regulation must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (i.e., must be narrowly tailored) to further those interests.

Question 44

What form do content-neutral speech regulations typically take?

Answer 44

“Time, place, and manner” restrictions (i.e., restrictions on the conduct related to speech rather than the speech itself). For example, a regulation prohibiting concerts in a park above a certain decibel level is content-neutral because it applies to all concerts, regardless of who is playing.

Question 45

What is a traditional public forum in the context of speech regulations?

Answer 45

Public property (i.e., government-owned property) that has historically been open to speech-related activities (e.g., streets, sidewalks, and public parks)

Question 46

What is a designated public forum in the context of speech regulations?

Answer 46

Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice and policy (e.g., a town hall open for use by social, civic, or recreation groups)

Question 47

What is the appropriate standard of review for a regulation on a traditional public forum or designated public forum that is content-based?

Answer 47

Strict scrutiny

Question 48

What is the appropriate standard of review for a regulation on a traditional public forum or designated public forum that is content-neutral? Explain.

Answer 48

intermediate scrutiny. The regulation must:
(1) Be narrowly tailored to serve an important government interest (though it need not be the least restrictive means) AND

(2) Leave open alternative channels of communication

The regulation may not be overbroad (i.e., burdening more speech than necessary), vague, or give unfettered discretion.

Question 49

What are limited public forums in the context of speech regulations?

Answer 49

Government forums not historically open generally for speech and assembly but opened for specific speech activity, like a school gym opened to host a debate on a particular community issue, or a public university’s funding of student publications.

Question 50

What are nonpublic forums in the context of speech regulations?

Answer 50

Government property not historically open generally for speech and assembly and not held open for specific speech activities, such as military bases or government workplaces.

Question 51

True or false: The government can regulate speech in limited public forums and nonpublic forums to reserve the forums for their intended use.

Answer 51

True

Question 52

Regulations restricting speech in limited public forums and nonpublic forums are valid if they are: (2 things)

Answer 52

(1) Viewpoint neutral AND

(2) Reasonably related to a legitimate government purpose

Question 53

What is the appropriate standard of review for speech regulations in limited public or nonpublic forums that are viewpoint-based?

Answer 53

Strict scrutiny

Question 54

HYPO: Ban on overnight sleeping in parks.

(1) What is the forum type?
(2) Is the restriction content-based or content-neutral?
(3) Is it valid?

Answer 54

(1) Traditional public forum
(2) Content-neutral (so intermediate scrutiny)
(3) Yes (e.g., public safety concerns)

Question 55

HYPO: Ban on political signs in a courtroom.

(1) What is the forum type?
(2) Is the restriction content-based or content-neutral?
(3) Is it valid?

Answer 55

(1) Limited public forum
(2) Content-based, but viewpoint-neutral
(3) Yes (e.g., preservation of the apolitical nature of the forum)

Question 56

What is the general rule regarding personal student speech on public school campuses? Exception(s)?

Answer 56

A student’s own personal speech (i.e., their expression of themselves as individuals) on campus cannot be censored absent evidence of substantial disruption

Exception: Speech promoting illegal drug use does not require showing any disruption or credible threat of disruption.

Question 57

What is the general rule regarding personal student speech off campus? Exception(s)?

Answer 57

A student’s personal speech that occurs off campus is generally more difficult to censor. Schools are limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interests of the students as private citizens.

Question 58

Restrictions on speech related to the school’s teaching (e.g., speech by school faculty and by students as part of curricular or extracurricular activities) must be _______.

Answer 58

Reasonably related to legitimate pedagogical concerns.

Question 59

HYPO: Suspension of a student for wearing a black armband in class without incident to protest a war. Is this valid?

Answer 59

No. This is personal student speech, and without a showing of substantial disruption, it cannot be banned or punished.

Question 60

HYPO: Suspension of a student for passing notes in class. Is this valid?

Answer 60

Yes. This is personal student speech not part of the curriculum, and there is substantial disruption for the students involved.

Question 61

HYPO: Censorship of a newspaper article about a student pregnancy for a high school journalism class that the school deemed age-inappropriate. Is this valid?

Answer 61

Yes. This is not actually personal student speech, but rather school speech. Even though the article was written by a student, it was for a journalism class. Thus, the school speech standard applies (reasonableness). Under that standard, this is reasonable and valid.

Question 62

HYPO: Suspension for posting “fuck cheer” to friends on social media on the weekend after failing to get on the varsity cheerleader squad. Valid?

Answer 62

No. Because this occurred off-campus and did not involve any bullying, threats, etc., the school may not punish the student for this post.

Question 63

Explain the general rules regarding unprotected public employee speech.

Answer 63

If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment.

A government employer may also punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern.

Question 64

Explain the general rules regarding protected public employee speech.

Answer 64

If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts balance the value of the speech against the government’s interest in the efficient operation of the workplace.

For speech on matters of private concern outside of the workplace, the speech is protected absent a detrimental effect on the workplace.

Question 65

True or false: The federal government may not prohibit federal executive branch employees from taking an active part in political campaigns.

Answer 65

False

Question 66

True or false: A public employee may not be hired, fired, promoted, transferred, etc., based on party affiliation or political views except as to policymaking positions, where party affiliation and views are relevant.

Answer 66

True

Question 67

True or false: The government can require employees to take loyalty oaths, as long as the oaths aren’t overbroad or vague.

Answer 67

True

Question 68

True or false: An oath may require abstention from advocating overthrow of the government.

Answer 68

False. An oath may not prohibit members in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine.

Question 69

True or false: An oath requiring public employees to support the Constitution and to oppose the unlawful overthrow of the government is valid.

Answer 69

True

Question 70

True or false: An oath requiring public employees to support the flag is valid.

Answer 70

False

Question 71

A regulation of speech or speech-related conduct will be invalidated as overbroad if it _______.

Answer 71

Punishes substantially more speech than is necessary.

Question 72

What are “prior restraints” in the context of speech regulations?

Answer 72

Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards (e.g., licensing systems, injunctions).

Question 73

What is the appropriate standard of review for content-based prior restraints? Content-neutral ones?

Answer 73

Strict scrutiny

Intermediate scrutiny

NOTE: Prior restraints are heavily disfavored, so the government’s burden to justify a prior restraint is significant. There must be some special societal harm to justify a prior restraint, especially a content-based one.

Question 74

HYPO: Injunction against the publication of the “Pentagon Papers” (an internal defense department history of the role of the U.S. in Vietnam) based on the speculative harm to an ongoing war in Vietnam. Is this valid?

Answer 74

No. There is no credible evidence that publication would actually harm the already failing war effort rather than simply exposing the truth of it.

Question 75

HYPO: Injunction against the publication of the D-Day invasion plans a week before the attack. Is this valid?

Answer 75

Yes. The government can reasonably claim that the publication of the movement of troops and plan of battle would lead to military disaster and lost lives.

Question 76

To be valid, a system for prior restraint must provide the following safeguards: (3 things)

Answer 76

(1) The standards must be narrowly drawn, reasonable, and definite,
(2) The injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech), and
(3) There must be prompt and final judicial determination of the validity of the restraint (e.g., a review of a permit denial)

Question 77

True or false: If a statute gives licensing officials unbridled discretion without any defined standards, it is void on its face and speakers do not need to apply for a permit.

Answer 77

True

Question 78

True or false: If a licensing statute includes standards, a speaker cannot ignore the statute. Instead, they must seek a permit, and if it is denied, they may not challenge the denial on any grounds.

Answer 78

False. It is true up until the petitioner’s option upon denial; a petitioner may challenge the denial on First Amendment grounds.

Question 79

HYPO: Parade permits are given at the discretion of a city official without any standards. Is this valid?

Answer 79

No. Licensing statutes may not give officials unfettered discretion.

Question 80

HYPO: Parade permits are given to all who pay a reasonable fee for security and sanitation. Is this valid?

Answer 80

Yes. The standard here is content-neutral, narrowly drawn, reasonable, and definite.