1st Assess Flashcards
1st Amend:
Congress shall make no law abridging the freedom of speech, or of the press;
General rules pertaining to the first amendment
In general, a regulation seeking to forbid communication of specific ideas (a content regulation)
is less likely to be upheld than
a regulation of conduct incidental to speech
Prior Restraints
Stopping speech before it occurs
Incitement of Illegal Activity
*** Brandenberg Test
Unprotected speech:
1) The speech is directed to inciting imminent lawless action
~AND~
2) likely to produce such action.
Is a government official permitted to have discretion over a speech regulation?
No
What are fighting words?
Words which by their nature are likely to incite an immediate breach of the peace
Difference between Incitement vs. Fighting Words
Incitement = Crowd is with you
Fighting Words = Crowd against you
PUBLIC FIGURE cannot sue for defamation unless they can prove the speaker:
Speaker Acted with ACTUAL MALICE
i.e., knowledge of the statement’s falsity or reckless disregard for whether it was true or false.
What are the tests for incitement of legal activity?
1) Clear and Present Danger Test I
(2) Reasonableness Test
(3) Risk Formula Approach
(4) ** Brandenburg Test **
What is the Clear and Present Danger Test I for incitement of illegal activities?
Constitutionality of a law and its application will be upheld. NOT PROTECTING SPEECH if
(1) Immanency / Immediacy that act would happen, if at all;
(2) Likelihood that the act would lead to violence;
(3) Seriousness repercussions / weight and gravity of the harm?
What is the Reasonableness Test for
Incitement of illegal activities?
The government can punish speech that incites unlawful
activity so long as it is reasonable
(To protect a …legit )
- Must be legitimate state interest and done through reasonable means.
What is the Clear and Present Danger Risk Formula Approach for incitement of illegal activities?
Seriousness of the harm minus the likelihood of the harm.
Dennis v. U.S.
When may speech be punished because of the risk that it may provoke an audience into using illegal force against the speaker?
hostile audience
What are “fighting words?”
Speech that is directed at another and likely to provoke a violent response (unprotected by the 1st Amendment).
What is a hostile audience?
When an individual’s speech
(1) provokes an imminent danger of uncontrolled violence by onlookers of the speaker
(2) Crowd control is impossible, and
(3) Speaker ignores police.
If all 3, the exercise of 1st Amendment rights is outweighed by the public interest in order.
MODERN - if can protect speaker and punish wrong doers than must do that
Fighting Words Laws are usually
unconstitutionally vague and overbroad
Defamation - plaintiff is a public official
he plaintiff can recover for defamation only by proving with CLEAR AND CONVINCING EVIDENCE the falsity of the statement and ACTUAL MALICE
Defamation - the plaintiff is a “private figure” and the matter is of “public concern,”
a state may allow the plaintiff to recover Actual DAMAGES for defamation by proving falsity of the statement and NEGLIGENCE by the defendant,
[ not as careful as a reasonable speaker speaker should have been]
[However, may recover presumed or punitive damages only by showing actual malice]
Defamation - the plaintiff is a “PRIVATE figure” and the matter is NOT of
“public concern,
the plaintiff can recover presumed or punitive damages without proving actual malice
(NEGLIGENCE)
Liability for intentional infliction of emotional distress for defamatory speech
must meet the defamation standards (like actual malice) and cannot exist for speech otherwise protected by the first amendment.
truthful reporting of
information that was legally obtained
(Privacy and the First Amendment)
A state may not create liability for this
Ex: Rape Victims Identity –victims sued for invasion of privacy; media won because it truthfully reported what it lawfully obtained
Broadcasting tape of illegally intercepted call (Privacy and the First Amendment)
The media may not be held liable for broadcasting a tape of an illegally intercepted call so long as the media did not participate in the illegality and it involves a matter of public importance
Ex - teachers union calls
Heckler’s Veto
A controversial legal position taken by law enforcement officers / the government based on an alleged right to restrict freedom of speech where such expression may create disorder or provoke violence // to prevent a reacting party’s behavior
One may be guilty of breach of the peace if he . . . make statements likely to provoke violence and disturbance of good order. . .
but in practically all such cases, the provocative language consisted of profane, indecent, or abusive marks directed to the person of the hearer
A statute must only prohibit specific conduct constituting
(1) a clear and present danger
to a
(2) substantial interest of the state
Shocking Speech
Can’t be restricted just b/c it’s offensive, unless likely to incite lawlessness and violence
Why is 1st Amend Protecting Speech (4)
- Marketplace of Ideas
- Democracy and Self- Government
- Self-Fulfillment
- Negative Theories of Speech Protection - Distrust of governmental censorship
Fighting Words - How many parties ?
2
- Speaker
- Person that wants to attack speaker b/c of words
Incitement - How many parties (usually)?
3
- Speaker
- Audience
- People audience wants to hurt / injure
Threats - how many parties ?
2
- Speaker
- Party speaker threatens
Threats must be -
Serious + Likely to happen
Fighting words:
when directed at another person and likely to provoke a violent reaction
Fighting words must have
A Hostile Audience
Hostile Audience Test:
clear and present danger factors to determine if there is a clear and present danger: >crowd control impossible >speaker ignores police AND >speaker provokes
