1st Amendment Flashcards
what is more likely to be upheld content based regulation or content neutral regulation?
content neutral regulation is more likely to be upheld
what does content-based restrictions on speech get?
generally strict scrutiny
how to determine if something is content based?
1) subject matter restriction
2) view point restriction
what is subject matter restriction for free speech?
the application of the law depends on the TOPIC of the message
what is view point restriction for free speech
application of the law depends on the IDEOLOGY of the speech
what do content neutral restrictions receive for test
generally intermediate scrutiny
what type of test needs to be met for court orders suppressing speech?
strict scrutiny
what happens if a court does order an injunction on speech? what must happen?
must be complied with until it is vacated or overturned
when can the govt require a license for speech
only when there is an important reasoning for the licensing and
1) clear criteria leaving almost NO DISCRETION to the licensing authority.
2) there must be procedural safeguards for review of licenses
ways to attack speech by a statute
1) vagueness
2) overbreadth
vagueness
if a reasonable person cannot tell what speech is prohibited and what is allowed
overbreadth
if it regulates regulates substantially more speech than the const allows to be regulated
are fighting words protected?
No but statutes attempting to punish fighting words generally void for vagueness
when can govt regulate symbolic speech
when it is
1) UNRELATED to suppression of message and if the impact on communication is
2) NO GREATER THAN NECESSARY to achieve the governments goal
what can a city do with nude dancing?
cannot ban it outright, but can regulate to certain areas because of “secondary effect”
when is cross burning not allowed
when it is on a private persons yard to threaten
are contribution limits on Election campaigns allowed?`
Yes
are expenditure limits on Election campaigns allowed?
NO government may not limit the aggregate amount
when can the government not limit the person spends to get a candidate elected?
as long as the expenditures are INDEPENDENT of the candidate, and are not disguised as contributions it is ok.
- Unions, Corporations and other entities can spend w/e they want to get them elected
can the government speech be limited by 1st amendment?
NO. speech by the govt cannot be challenged for violating 1st amendment.
- Generally govt speech and government funding of speech will be upheld as long as it is RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT PURPOSE
what types of speech are unprotected or less protected under 1st amendment?
1) incitement of illegal activity
2) Obscenity and sexually-oriented speech
3) Commercial speech
4) Defamation
incitement of illegal activity
the government may punish speech if there is a SUBSTANTIAL likelihood of
1) IMMINENT ILLEGAL ACTIVITY and
2) if that speech is DIRECTED at causing imminent illegality
test for obscenity (all 3 must be met)
1) the material must appeal to the prurient interest or a”shameful or morbid interest in sex”
- local std
2) the material must be patently offensive under the law
- community, statewide, national std
3) taken as a whole the material must lack serious value (artistic, literally, political or scientific value) determined by a national std.
when can the government not punish possession of obscene materials
when it is in someones private home
-EX: child pornography
child pornography
can be banned even if not obscene and even if in private home. BUT must actually be children not just actors or CGI
generally is profane speech allowed
yes
X/C when profane speech is not protected
1) FREE over the air broadcast media (radio, tv)
2) in schools
commercial speech for false, misleading
not protected
even if TRUE commercial speech that inherently risks deception can be prohibited when?
1) prevent professionals from using trade names
2) stop attorney in person solicitation of clients
generally what type of test does commercial speech get
intermediate
- government regulation must be narrowly tailored, but does not need to be the least restrictive way.
may a state create liability for the truthful reporting of information it gets legally?
NO
may the media be held liable for broadcasting a tape of an illegally intercepted and recorded call/
NO, as long as the media did not participate in the illegality and it involves a matter of public importance
is speech by government employees on the job in the performance of duties protected
no