1st AMD Flashcards
1st AMD issues
Free speech methodology 1st AMD protected/unprotected speech Places available for speech Freedom of association Freedom of religion
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Free speech methodology
content-based v content-neutral restrictions prior restraints vagueness and overbreadth symbolic speech anonymous speech government speech
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Free speech methodology
content-based v content-neutral restrictions
- Content-based restrictions on speech generally must meet strict scrutiny.
a. subject matter restrictions (application of law depends on message topic)
b. viewpoint restrictions (application of law depends on message ideology) - Content-neutral laws burdening speech generally need only meet intermediate scrutiny
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Free speech methodology
prior restraints
prior restraint - something that stops speech before it occurs
apply strict scrutiny
court orders or license/permit
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Free speech methodology
prior restraints - court order
Court orders (TROs, injunctions) suppressing speech must meet strict scrutiny.
Procedurally proper court orders MUST BE COMPLIED WITH until they are vacated or overturned.
A person who violates a court order is barred from later challenging it.
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Free speech methodology
prior restraints - license/permit
Govt can require a license/permit for speech ONLY if there is an important reason for licensing AND clear criteria leaving almost no discretion to the licensing authority.
Licensing schemes MUST contain procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.
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Free speech methodology
Vagueness and overbreadth
Vagueness - a reasonable person cannot tell what speech is prohibited and what is allowed (unconstitutional)
Overbreadth - the law regulates substantially more speech than the constitution allows (unconstitutional)
Fighting words laws are unconstitutionally vague and overbroad.
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Free speech methodology
symbolic speech
Govt can regulate conduct that communicates IF it has an important interest unrelated to suppression of the message AND if the impact on communication is no greater than necessary to achieve the govt’s purpose
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Free speech methodology
symbolic speech examples
flag burning (constitutional) draft card burning (not constitutional) nude dancing (may be prohibited) cross burning (constitutional UNLESS done w/intent to threaten) campaign contribution limits (constitutional) campaign expenditure limits (not constitutional)
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Free speech methodology
anonymous speech
Anonymous speech is protected
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Free speech methodology
government speech
Government speech cannot be challenged as violating the 1st AMD.
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1st AMD protected/unprotected speech
incitement of illegal activity obscene and sexually-oriented speech commercial speech defamation and IIED privacy speech by govt employees other restrictions
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1st AMD protected/unprotected speech
incitement of illegal activity
Govt may punish speech IF there is a substantial likelihood of imminent illegal activity AND if the speech is directed to causing imminent illegality.
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1st AMD protected/unprotected speech
obscene and sexually-oriented speech
Miller test for obscene speech
Miller test for obscene speech
- The material must appeal to the prurient interest (community std)
- The material must be patently offensive under the law prohibiting obscenity (depends on the law - fed, state or local)
- Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (ALPS) (national std)
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1st AMD protected/unprotected speech
obscene and sexually-oriented speech issues
- Govt may use zoning ordinances to regulate the location of adult bookstores and movie theaters
- Child pornography may be completely banned, even if not obscene. (Children must be used in the production to be child porn; if not, it’s not child porn)
- Govt may not punish private possession of obscene materials, but govt may punish private possession of child porn.
- Govt may seize assets of businesses convicted of violating obscenity laws
- Profane and indecent speech is generally protected by the 1st AMD.
5a. Not protected over broadcast media but protected over cable or internet
5b. Not protected in schools
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1st AMD protected/unprotected speech
commercial speech
- Advertising for illegal activity, and false and deceptive ads are NOT protected by the 1st AMD
- True commercial speech that inherently risks deception can be prohibited (professionals from advertising/practicing under a trade name, attorney in-person solicitation of clients for profit, but NOT accountants)
- Other commercial speech can be regulated IF intermediate scrutiny is met
- Govt regulation of commercial speech must be narrowly tailored but does not need to be the least restrictive alternative
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1st AMD protected/unprotected speech
defamation and IIED
- Public official or public figure - P can recover for defamation by proving 1) falsity of the statement and 2) actual malice. Can recover compensatory, presumed, punitive damages.
- Private figure re: public concern - P can recover for defamation by proving 1) falsity of the statement and 2) negligence by D. Can recover compensatory for actual injury, presumed or punitive require actual malice
- Private figure not public concern - P can recover for defamation by proving 1) falsity of the statement and 2) negligence by D. Can recover compensatory for actual injury presumed or punitive do not require actual malice
- IIED liability for defamatory speech must meet the defamation standards and cannot exist for speech otherwise protected by the 1st AMD.
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1st AMD protected/unprotected speech
privacy
- Govt may not create liability for the truthful reporting of information that was lawfully obtained from the govt
- Liability is not allowed if the media broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality and it involves a matter of public importance
- Govt may limit its dissemination of information to protect privacy
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1st AMD protected/unprotected speech
speech by govt employees
Speech by govt employees ON THE JOB in the performance of their duties is not protected by the 1st AMD.
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1st AMD protected/unprotected speech
other restrictions
Other govt restrictions based on the content of speech must meet strict scrutiny.
Restrictions on violent speech must meet strict scrutiny.
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Places available for speech
public forums designated public forums limited public forums non-public forums private property for speech purposes
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Places available for speech
public forums
public forums - govt properties that the govt is constitutionally required to make available for speech
- Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met
- If content neutral, regulations must be a time, place, or matter regulation that serves an important govt purpose AND leaves open adequate alternative places for communication.
- Govt regulation of public forums need not use the least restrictive alternative but must be narrowly tailored
- City officials cannot have discretion to set permit fees for public demonstrations
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Places available for speech
designated public forums
designated public forums - govt properties that the govt could close to speech but choose to keep open. Same rules as public forums
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Places available for speech
limited public forums
limited public forums - govt properties that are limited to certain groups or dedicated to the discussion of only some subjects. Govt can regulate speech in LPF so long as the regulation is reasonable and viewpoint neutral.
