Speech Flashcards

- Establishment Clause - Free Exercise Clause - Freedom of Association - Freedom of Speech

1
Q

What does the First Amendment protect?

A

Freedom of expression (speech, religion, press, assembly, & association)

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2
Q

Define

symbolic speech

A

Expressive conduct meant to convey a particular message (e.g. wearing black arm bands in protest)

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3
Q

When can the government regulate symbolic speech?

A
  1. Regulation furthers important gov. interest;
  2. Interest is unrelated to suppression of the message; and
  3. Impact on speech is no greater than necessary to achieve interest
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4
Q

Are restrictions on the following constitutional:

  1. Flag burning
  2. Public nudity
  3. Leafleting
  4. Cross-burning
A
  1. Unconstitutional
  2. Constitutional b/c interest in harmful effects
  3. Constitutional b/c interest in littering
  4. Constitutional if meant to threaten
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5
Q

Define

content-based restriction

A

Restriction based on the speech’s subject matter; i.e. disagreement with the message it contains. Can be either content-based on its face or as applied.

⭐️ Subject to strict scrutiny ⭐️

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6
Q

What 5 types of speech can be regulated on the basis of content? (i.e. unprotected speech)

A
  1. Obscenity;
  2. Incitement;
  3. Fighting words;
  4. Defamation; and
  5. Commercial speech

⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny

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7
Q

Define

content-neutral restriction

A

Applies neutrally to all content regardless of viewpoint or subject matter.

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny

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8
Q

Define

public forum

A

Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.

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9
Q

Distinguish traditional vs. designated public forum

A

Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums

Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums

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10
Q

3 requirements needed for a valid time, place, or manner restriction in a public forum

A

Restriction is:

  1. Content-neutral;
  2. Leaves open ample, alternative channels of communication; and
  3. Narrowly tailored to serve significant government interest (not compelling gov. interest)
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11
Q

Is there a right to picket a single residence?

A

No

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12
Q

When will a regulation on speech in a designated public forum be upheld?

A

When forum is open for speech and:

  1. Regulates time, place, or manner (i.e. is content-neutral);
  2. Is narrowly tailored to serve significant government interest; and
  3. Leaves open ample, alternative channels of communication

(same as test for traditional public forum)

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13
Q

Define

non-public forum

A

Public property that is not open to speech (e.g. schools, jails, airports)

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14
Q

When is a restriction on speech in a non-public forum valid?

A
  1. Viewpoint neutral (**does not need to be content neutral); and
  2. Reasonably related to a legitimate government purpose
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15
Q

Define

viewpoint neutral restriction

A

One that restricts entire categories of speech, but not viewpoints within a category

Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed

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16
Q

Define

prior restraint

A

Blocks speech before it is expressed. Subject to strict scrutiny.

⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances

More info: Prior Restraint

17
Q

When is a prior restraint on speech allowed?

A

Only allowed in extremely rare circumstances such as:

  • During wartime or national security crisis to protect troops/citizens; or
  • To prevent incitement of violence
18
Q

Define

overbroad

A

Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).

Renders regulation void.

19
Q

Define

vagueness

A

Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits

20
Q

Can the government restrict inmates’ free speech?

A

Yes, as long as the regulation is rationally related to a legitimate penalogical objective and an alternate way to express legitimate speech is available

⚠️ Note: This includes pretrial detainees, parolees, and those on probation

21
Q

Does the press have more First Amendment rights than the general public?

A

No, same rights public at large

22
Q

Is the media protected by the First Amendment for publishing a lawfully obtained private fact? (e.g. identity of a rape victim)

A

Yes, as long as story is matter of public concern (i.e. newsworthy)

23
Q

Are gag orders constitutional?

A

Very rarely constitutional, unless they are the least restrictive means necessary to ensure D has a fair trial (usually alternatives such as better voir dire, venue change, or postponement are available)

24
Q

Do the public and press have a right to attend trials?

A

Criminal trials: Yes, but can be overruled upon showing of overriding interest

Civil trials: Unclear

25
Can the government regulate **broadcast TV**?
Can only **fine** stations for airing "patently offensive and excretory speech"
26
**Content-based** regulations of **cable TV** are subject to what level of scrutiny?
Strict scrutiny
27
**Content-neutral** regulations of **cable TV** are subject to what level of scrutiny?
Intermediate Scrutiny ## Footnote (e.g. "must carry" provisions)
28
What is the 3-prong test to determine whether speech is **obscene**?
1. Appeals to "**prurient interests;”** *(community standard)* 2. **Depicts or describes** **sexual conduct** in a way that is patently offensive to *community standards* and applicable state law; and 3. Lacks serious **artistic, literary, political, or scientific value** as determined by *national standards* ## Footnote ⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.
29
Are zoning restrictions on **adult entertainment establishments** constitutional?
Yes, if zoning is to prevent **adverse "secondary effects"** caused by the business, such as increased neighborhood crime ("secondary effects doctrine")
30
Is **profanity** protected?
Yes unless: 1. Broadcast over public television; or 2. In public schools
31
When can the government regulate speech that is **incitement to violence**?
Regulation must be **narrowly tailored** and only aimed at: 1. Speech that promotes or directs **imminent illegal** action; and 2. Creates a "**clear and present danger**" of such action
32
# Define fighting words
Substantially likely to provoke an **immediate violent reaction** (e.g. direct personal insult)
33
Are attempts to **limit fighting words** constitutional?
Limitations will almost always fail for being either **overbroad**, **vague**, or **viewpoint-based** and thus failing strict scrutiny ## Footnote ⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad
34
# Define commercial speech
Speech whose primary goal is **commerce** (e.g. commercial or advertisement for a product or service)
35
What is the **four-part test** to determine whether regulation of **commercial speech** is constitutional?
Must satisfy Central Hudson Test: 1. Speech is not **false, misleading, or illegal**; 2. Regulation serves **substantial government interest;** 3. Regulation **directly advances interest**; and 4. Regulation is **not more extensive than necessary** to serve that interest ## Footnote *More info:* [Central Hudson Test](https://www.law.cornell.edu/wex/commercial_speech)
36
What is **unprotected** commercial speech?
Speech that is **misleading, false, or unlawful** and can be **regulated freely** by the government
37
What is **unprotected** commercial speech?
Speech that is **misleading, false, or unlawful** and can be **regulated freely** by the government