1st Amendment - Regulation of Content

Question 1

Content-based regulation

Answer 1

A law is content-based if it applies to certain speech because of the subject discussed or the idea expressed.

However, even regulations that are not content-based on their face may still be content-based in application or in intent, and these laws, too, will generally be subject to strict scrutiny.

Question 2

Content-based regulation exception (not protected by the 1st amendment)

Answer 2

However, the government may restrict speech on the basis of content if the speech falls into one of the following historic and traditional categories: obscenity, fighting words, defamation, or commercial speech.

States are not free to create new categories of content-based restrictions without persuasive evidence that such restrictions have a long-standing history of proscription

Question 3

Content-based standard

Answer 3

Strict Scrutiny

Any governmental regulation of speech that is content-based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest

Question 4

Obscenity (might not be tested on this?)

Answer 4

To be considered obscene, speech must meet each part of a three-prong test developed in Miller v. California.

Under the Miller test, the average person, applying contemporary community standards, must find that the material, taken as a whole:

i) Appeals to the “prurient interest”;

ii) Depicts sexual conduct in a patently offensive way; and

iii) Lacks serious literary, artistic, political, or scientific value.

Question 5

Incitement to Violence

Answer 5

A state may forbid speech that advocates the use of force or unlawful action if:

i) The speech is directed to inciting or producing imminent lawless action; and

ii) It is likely to incite or produce such action (i.e., creates a clear and present danger).

Brandenburg Test

Question 6

Fighting Words

Answer 6

A speaker may be criminally punished for using “fighting words,” which are words that by their very nature are likely to incite an immediate breach of the peace.

Words that are simply annoying or offensive are not fighting words; there must be a genuine likelihood of imminent violence by a hostile audience.

Statutes designed to punish only fighting words that express certain viewpoints are unconstitutional

Question 7

Defamation

Answer 7

Limits on punishment for defamatory speech may apply in cases in which the plaintiff is a public official or public figure, or when a defamatory statement involves a matter of public concern

Question 8

Defamation - Public Figure

Answer 8

A public figure is someone who is known to the general public and includes any person who has voluntarily injected herself into the public eye.

Persons who have not assumed a role of special prominence in the affairs of society are not public figures unless they have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of issues involved”

The plaintiff must prove (1) clear and convincing evidence the falsity of the defamatory statements and (2) the defendant acted with actual malice, i.e., knowledge of the statement’s falsity or reckless disregard for whether it was true or false.

Question 9

Defamation - Public Official

Answer 9

Substantial responsibility for government affairs

Public has an independent concern for their performance

Question 10

Defamation - Private Individual

Answer 10

If the plaintiff is a private figure but the defamatory statement involves a matter of public concern, then the standard is lower, but the plaintiff still must establish negligence with respect to the falsity of the statement.

Question 11

Commercial Speech

Answer 11

advertising and similarly economically oriented expression

Intermediate Scrutiny

Question 12

Commercial Speech questions

Answer 12

Ultimately, in commercial speech cases, it is useful for courts to determine the constitutionality of governmental regulations of commercial speech by considering the following four questions about the speech:

Does the speech advertise illegal activities or constitute false or deceptive advertising that is unprotected by the First Amendment?

Is the government’s restriction justified by a substantial government interest?

Does the law directly advance the government’s interest?

Is the regulation of speech no more extensive than necessary to achieve the government’s interest?