Speech Flashcards
(20 cards)
Speech
1st amendment says “Congress shall make no law abridging the freedom of speech;” but protection of speech is not unlimited.
Content-Based Regulation
If government regulates speech because of its content–whether the topic or the viewpoint–strict scrutiny applies.
Brandenburg 3-Part Test
Content of speech may be criminalized only if the government proves that the speaker 1) advocates unlawful action or conduct, 2) intends to incite or produce imminent unlawful action, and 3) speaks when her speech is likely to incite or produce such action.
“Threats” Exception
Where a statute defines a “true threat” consistently with Brandenburg, such speech may be criminalized.
“Obscenity” Exception
A state may not criminalize private possession of “obscene matter”.
Non-Content-Based Regulation
Where government regulates time, manner, and place of speech–but is content neutral– intermediate scrutiny is applied.
Unprotected Content
Government may regulate unprotected content subject to rational basis scrutiny. (Defamation, threats, obscenity, child pornography).
Obscenity Test
1) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, 2) Whether the work depicts or describes sexual conduct in a patently offensive way, applying contemporary community standards, 3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value, according to a reasonable person standard.
Pornography
Where government regulates the secondary effects of pornographic speech but not its content, the 3-part obscenity test does not apply; rather, intermediate scrutiny applies
Commercial Speech
Speech proposing a commercial transaction. If commercial speech is misleading or fraudulent, government may prohibit it. Government may regulate non-misleading and non-fraudulent speech if regulation directly advances a substantial interest and has no narrower means to advance the interest.
Public Employee
Rational basis scrutiny: 1) Speech is related to a personnel issue internal to the speaker’s workplace, and 2) Speech impairs the government’s interest in maintaining an efficient and effective workplace. Intermediate scrutiny: Employee must show that 1) Speech is of public concern and 2) Unrelated to his/her official duties.
Public School Student
Strict scrutiny: 1) If speech’s content is political and 2) Manner of its expression is not disruptive. Rational basis scrutiny: 1) If it is not political, or if it is political but 2) Expressed in a disruptive manner.
Expressive Conduct
Conduct is protected as speech if 1) speaker intends to express a message and 2) observers would reasonably understand conduct as expressing a message.
Public Forum
Speech is protected in public forums. Parks, streets, and sidewalks are traditional public forums.
Non-Traditional Public Forum
Government may designate non-traditional property as a public forum if intends to do so. Speech in non-traditional public forum may be regulated subject to rational basis scrutiny unless regulation is content-based or viewpoint-based.
Prior Restraint
Where government seeks to limit expression and expressive conduct prior to its occurrence, limitation is termed a prior restraint. Prior restraints are given strict scrutiny.
Overbreadth
Where government limits expression and expressive conduct by an over broad law, party has standing to bring a claim against law even where, as applied to that party, law is constitutional. Overbreadth challenge will not succeed if law: 1) may be construed narrowly to avoid unconstitutionality, 2) is not substantially over broad and 3) is directed at conduct that (unlike picketing and demonstrating) is not inherently expressive.
Vagueness
Where law limits expression and expressive conduct by vague limitation, law 1) fails to give people fair notice of what is permitted and what is prohibited and 2) gives government and its officials wide discretion in enforcing the law to favor some content and speakers and disfavor others.
Freedom of the Press
Regulation of the content of speech made by the print and broadcast media is subject to strict scrutiny. Truthful content lawfully obtained by the media is subject to strict scrutiny. Defamatory speech by media is protected against liability in lawsuits brought by public officials even where speech is false, so long as speech is not made with actual malice.
Freedom of Association
Freedom of association for expressive purposes is a fundamental right= strict scrutiny. Association for economic gain is not deemed a fundamental right.
