Ownersih of Speech, Obscenity, & commercial Speech Flashcards
(15 cards)
Is copyright violation protection by free speech?
No, it is seen as enforcing ownership of speech & protecting it in a way
Magazine liable for infingement for publication of lawfully obtained, truthful excerpt from President Ford’s memoir
The Miller Test
Obscenity
the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
Who answers the question posed by the miller test?
The Jury, the question is, would an average person applying** contemporary community standards** find that the work appeals to prurient interest, are patently offensive, and lacks serious literary, artistic, political, or scientific value Ordinary sex is not obscenity under the miller
An as applied challenge
Statute is unconstitutional as applied to me in this circumstance.
Statute remains even if you win. Vagueness and Overbreadth are typically as applied challenges.
A Facial Challenege
The statute is unconstitutional on its face. Statute is struck down if you win.
Rule for raising an overbreadth challenege
if the plaintiff’s speech is unprotected, OB must be real and substantial
Only the person who’s speech is not protected can raise the overbreadth challenge
Rule for raising a facial challenege
if the speech is protected, only an as applied challenge is permitted unless the law in question is unconstitutional in all applications.
Fighting words
fighting words not protected, even though what they are is unclear and successful cases are extremally rare.
Hostile Audiences
Words were protected but were gonna cause a riot. However, the speaker can still be arrestsed but police must first make reasonable effort to protect speech.
How much protection is a fact question
Central Hudson Test
Regulation of commercial speech
1) Lawful activity, not misleading,
2) substantial government interest,
3) directly advances government interest and 4) not more extensive than necessary to serve that interest
Would a rule banning offensive speech due to it causing people to stay away from city counicl meetings be constitutional?
Probably yes, unless it was political speech
The problem must be with the form of the speech, not the idea. Banning someone from saying fuck the other speakers may be upheld but saying hiter was right would not.
Why can a university tell a math teacher, “you can only talk about math?”
“Universities are never bound completly by the 1st Amendment, but noone knows to what extent they are” - L.
They are permitted to promote civility on campus & punish advocacy of illegal conduct.
If abortion drugs are illegal in state A but legal in state B, can a person advertize that the drugs are legal in state B while resideing in state A?
Yes, you can tell people what is going on in other states. And more importantly, commercial speech is protected.
What does the court say about political speech vs. Commercial speech in VA state pharmacy?
In a society like ours, commercial info is just as important as political information.
Protection not absolute—not to false, deceptive or misleading. Nor is illegality protected.
Why was a lawyer soliciting clients in In Re Primus protected?
This solicitation survived exacting scrutiny because they were an ACLU lawyer wh was also engaging in political expression when soliciting those clients
