1st Am Flashcards
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Content-Based v. Conduct-Based Regulation
Which regulation, content-based OR conduct-based, is more likely to be held unconstitutional?
Content-based!
In general, a reg seeking to forbid communication of SPECIFIC IDEAS (content-based) is LESS likely to be upheld than regulation of CONDUCT incidental to speech
Judicial Review Standards for Content-Based vs. Content-Neutral Restrictions
What are the scrutiny stds for contest-based and content-neutral restrictions, respectively?
Content based restrictions on speech must meet STRICT SCRUTINY
Content-NEUTRAL restrictions(i.e. applies to ALL speech regardless of viewpt) burdening speech generally need only meet INTERMEDIATE SCRUTINY
• example: Law saying “no parades or demonstrations in the park” is content-neutral
How to determine if Restriction is Content-Based
What are the 2 alternative ways of finding that a law is content-based?
There are two type of content based laws
1) SUBJECT MATTER RESTRICTIONS = application of the law depends on the topic of the msg
• example: A CHI law stating that that there is NO PICKETING allowed in a residential area UNLESS the picketing is about a labor issue
**NOTE: the picketers could be pro or anti labor but they just need to be “speaking” on the topic of labor
2) Viewpt restrictions: application of the law depends on the IDEOLOGY of the speech
• example: allowing pro-war demonstrators in a part but banning any anti-war protests
**NOTE: here the issue of war is not what is being allowed or restricted it is the viewpoint of being anti-war that is being restricted
PRIOR RESTRAINTS
What is “prior restraint” and the level of scrutiny that it must meet?
Prior restraint = A judicial order or administrative system that STOPS speech BEFORE it occurs
Ct orders suppressing speech MUST meet STRICT SCRUTINY
Gag orders on the press to prevent prejudicial PRE-trial publicity are NOT allowed
IMPORTANT: A person who VIOLATES a ct. order is later BARRED from challenging it even if the ct. order seems to be clearly unconstitutional
Must a prior restraint challenger follow a ct Gag Order?
YES!
Procedurally proper ct orders MUST be complied w/ UNTIL they are VACATED or OVERTURNED
A person who violates a ct order is BARRED from later challenging it
LICENSES and Free Speech
What are 3 requirements that must be met before the gov’t can require a license for speech?
The government can require a license for speech ONLY under the following Rqmts:
1) There has to be an IMPORTANT reason for licensing
2) There must be CLEAR CRITERIA, leaving almost NO discretion to the licensing authority
3) There must be PROCEDURAL SAFEGUARDS suh as prompt determination of requests for licenses and judicial review of license denials
Free Speech and Vagueness OR Overbreadth of regulation
What is the std for a speech regulation being struck down for vagueness OR overbreadth?
1) VAGUENESS:
A law is unconstitutionally VAGUE if a reasonable person CANNOT tell what speech is prohibited and what is allowed
• Example: a law prohibiting books that “tend to morally corrupt the youth” was unconstitutional b/c it was too vauge to tell which “speech” (books) are okay
2) OVERBREADTH: A law is unconstitutionally OVERBROAD if it regulates subtl MORE speech than the constitution allows to be regulated
E.g. fighting words are NOT protected speech, BUT statutes attempting to punish the use of such words are often found to be VOID for VAGUENESS and OVERBROADNESS
***This is always the answer on the bar exam when dealing with the regulation of fighting words!
DEFAMATION
What are the elements of defamation?
**NOTE: NY Distinction
1) Defamatory language of OR concerning the π Defamatory = if it adversely affects the reputation the subject of that stmt (i.e. name calling → never; fact-based opinion → maybe)
A DEFAMATORY language claim HAS to be concerning a LIVING person (Michael Jackson’s estate can not bring a defamatory action on his behalf)
STATEMENTS ABOUT A GROUP:
(i) if the stmts are about a large group, NO one is defamed (ii) if the stmt is about a small group, π may recover if it can be reasonably be associated with π
2) Publication (intentionally OR negligently)by ∆ to a 3d person (NOT just π)
NO de minimis req: revealing to ONE 3d person is sufficient for publication
Primary publishers (newspapers, etc) are ALWAYS liable; secondary publishers (newspaper stand, etc) MAY be liable (if they knew of defamatory content)
3) Damage to π’s reputation (type depends on type of defamation)
LIBEL: written/printed/broadcast publication of defamatory language → general damages are PRESUMED; no need to prove special damages
SLANDER: spoken defamatory language → UNLESS slander per se [(i) related to π’s business/profession; (ii) π has committed crime of moral torpitude (e.g. fraud); (iii) the woman π is unchaste; (iv) π has loathesome disease (leprosy; or STD)], π has to prove special economic damages
**NY DISTINCTION: there is an additional slander per se category available: imputation of homosexulaity
…[1st Am reqs] ONLY IF matter of “public concern”…
4) Falsity of the defamatory language – STMT MUST BE FALSE!
If stmt is TRUE, then NO c/a for defamation
5) Fault on ∆’s part (depending π’s status)
A. If π is PUBLIC OFFICIAL OR FIGURE,
B, π has to prove malice (KNOWLEDGE that stmt is false OR MALICE - reckless disrgard as to its truth) to get damages
A. If π is PRIVATE PERSON AND matter of PUBLIC CONCERN,
B. π has to prove at least NEGLIGENCE as to stmts falsity to get damages for ACTUAL INJURY
A. If π is PRIVATE PERSON AND matter of is NOT a matter of public concern,
B. π can recover presumed general damages (libel or slander per se) or specific damages (proven damages under other non-per se slander claims)
NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1st Am
SYMBOLIC SPEECH
When can the gov’t regulate symbolic speech?
The gov’t may regulate CONDUCT that communicates (symbolic speech) IF:
1) it has an IMPORTANT interest UNRELATED to the suppression of the msg; AND
2) the impact on communication is NO greater than NECESSARY to achieve the gov’t goal
- —————— Gov’t ALLOWED to regulate… (i) Draft card burning (b/c of potential for national emergency leading person to need to have the card)
(ii) Nude dancing
(iii) Contribution limits to individual candidate campaigns - —————— Gov’t NOT ALLOWED to regulate… (i) Flag burning
(ii) Cross burning (AS LONG AS the burning is NOT done to threaten/intimidate)
(iii) Overall EXPENDITURE limits in campaigns (gov’t cannot limit the amt a person/corp/union spends to get a candidate elected, SO LONG AS the expenditures are independent of the candidate and are not disguised)
ANONYMOUS SPEECH
Is anonymous speech protected by the 1st Am?
YES!
Anonymous speech is protected by the 1st Am
BUT NOTE: A state’s interest in promoting transparency and accountability in elections is SUFFICIENT to justify public disclosure of the names/addys of persons who sign ballot petitions
SPEECH BY THE GOV”T
Is speech BY the gov’t restricted by the 1st Am?
Speech BY the gov’t CANNOT be challenged as violating the 1st Am
Gov’t speech AND gov’t FUNDING of speech will be upheld SO LONG AS it is rationally related to a legitimate gov’t interest (rational basis)
SPEECH NOT/LESS PROTECTED BY 1st Am.
What5 categories of speech are UNPROTECTED p/t the 1st Am?
REMEMBER:
CONTENT-based restrictions of speech must meet STRICT SCRUTINY (law is NECESSARY to achieve a COMPELLING gov’t interest)
Regulation of the following is COMPELLING, meaning that it has passed Strict Scrutiny to make it so that it is NOT or is LESS protected by 1st A. …
1) Incitement of illegal activity:
The gov’t may punish speech IF:
(i) there is a SUBSTL LIKELIHOOD of IMMINENT illegal activity;AND
(ii) the speech is DIRECTED to CAUSING such illegality
2) Obscenity
3) Defamatory speech
4) Fighting words: true threats or personally abusive actions (cross burning to intimidate)
—————— ALSO REMEMBER:
CONTENT-neutral restrictions of speech must meet INTERMEDIATE SCRUTINY (law is SUBSTL RELATED to an IMP gov’t interest)
Regulation of the following has been deemed to be IMPORTANT, meaning that it has passed Intermediate Scrutiny to make it so that it is NOT or is LESS protected by 1st A….
5) SOME commercial speech:
Advertising for illegal activity; OR false/deceptive ads are NOT protected
Other commercial speech can be regulated if intermediate scrutiny is met
Government regulation of commercial speech must be narrowly tailored, but it DOES NOT need to be the least restrictive alternative
EVEN true commercial speech that inherently risks deception can be prohibited (e.g. using certain trade names)
• example: The government may prevent professionals from advertising or practicing under a trade name
• example: The government may prohibit attorney, in-person solicitation of clients for profit
- -In-person solicitation of free services are allowed
- -Letter solicitation is allowed
• example: The government may not prohibit accountants from in-person solicitation of clients for profit
OBSCENE SPEECH
What are the 3 reqs for speech to be deemed obscene?
Speech is obscene (UNPROTECTED) IF it meets ALL 3 ELEMENTS OF THIS 3 PART TEST…
1) the material appeals to the PRURIENT interest(“shameful or morbid interest in sex”)
(based on a COMMUNITY std);
2) the material must be PATENTLY offensive based on a clear definition in the statute of what is Patently Offensive
(based what’s DEFINED in STATUTE ); AND
3) the material LACKS serious REDEEMING artistic, literary, political OR scientific value
(based on a NATIONAL std)
NOTE: The gov’t MAY use zoning ordinances to regulate the number/location of adult bookstores/movie theaters
(“erogenous zoning”)
CHILD PORN (i.e. children in the production of the material) may be COMPLETELY banned, even if it’s NOT obscene (thank the lord!) BUT if it is a hologram or adult made to look like a child then allowed (so gross!)
The gov’t CAN’T punish the PRIVATE possession of obscene materials; BUT the gov’t CAN punish the private possession of CHILD PORN
The gov’t may seize the assets of businesses CONVICTED of violating obscenity laws
PROFANE/INDECENT speech is generally PROTECTED by the 1st Am; EXCEPT… Not allowed on free, over-the-air broadcast media (TV/radio); AND not allowed in schools
May the gov’t restrict speech by gov’t EMPLOYEES?
YES!
Speech by gov’t emps on the job in the performance of their duties is NOT protected by the 1st Am
PRIVACY AND LEGALLY OBTAINED GOV’T INFO
May the gov’t impose liability for TRUTHFUL reporting of LEGALLY obtained gov’t information?
NO!
A state may NOT create liability for the TRUTHFUL reporting of information that was LEGALLY obtained from the gov’t records (e.g. a rape victim’s identity obtained lawfully by a reporter)
