1st Assess

Question 1

1st Amend:

Answer 1

Congress shall make no law abridging the freedom of speech, or of the press;

Question 2

General rules pertaining to the first amendment

Answer 2

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

Question 3

Prior Restraints

Answer 3

Stopping speech before it occurs

Question 4

Incitement of Illegal Activity

*** Brandenberg Test

Answer 4

Unprotected speech:

1) The speech is directed to inciting imminent lawless action

~AND~

2) likely to produce such action.

Question 5

Is a government official permitted to have discretion over a speech regulation?

Answer 5

No

Question 6

What are fighting words?

Answer 6

Words which by their nature are likely to incite an immediate breach of the peace

Question 7

Difference between Incitement vs. Fighting Words

Answer 7

Incitement = Crowd is with you

Fighting Words = Crowd against you

Question 8

PUBLIC FIGURE cannot sue for defamation unless they can prove the speaker:

Answer 8

Speaker Acted with ACTUAL MALICE

i.e., knowledge of the statement’s falsity or reckless disregard for whether it was true or false.

Question 9

What are the tests for incitement of legal activity?

Answer 9

1) Clear and Present Danger Test I
(2) Reasonableness Test
(3) Risk Formula Approach
(4) ** Brandenburg Test **

Question 10

What is the Clear and Present Danger Test I for incitement of illegal activities?

Answer 10

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?

Question 11

What is the Reasonableness Test for

Incitement of illegal activities?

Answer 11

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.

Question 12

What is the Clear and Present Danger Risk Formula Approach for incitement of illegal activities?

Answer 12

Seriousness of the harm minus the likelihood of the harm.

Dennis v. U.S.

Question 13

When may speech be punished because of the risk that it may provoke an audience into using illegal force against the speaker?

Answer 13

hostile audience

Question 14

What are “fighting words?”

Answer 14

Speech that is directed at another and likely to provoke a violent response (unprotected by the 1st Amendment).

Question 15

What is a hostile audience?

Answer 15

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

Question 16

Fighting Words Laws are usually

Answer 16

unconstitutionally vague and overbroad

Question 17

Defamation - plaintiff is a public official

Answer 17

he plaintiff can recover for defamation only by proving with CLEAR AND CONVINCING EVIDENCE the falsity of the statement and ACTUAL MALICE

Question 18

Defamation - the plaintiff is a “private figure” and the matter is of “public concern,”

Answer 18

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]

Question 19

Defamation - the plaintiff is a “PRIVATE figure” and the matter is NOT of
“public concern,

Answer 19

the plaintiff can recover presumed or punitive damages without proving actual malice
(NEGLIGENCE)

Question 20

Liability for intentional infliction of emotional distress for defamatory speech

Answer 20

must meet the defamation standards (like actual malice) and cannot exist for speech otherwise protected by the first amendment.

Question 21

truthful reporting of
information that was legally obtained
(Privacy and the First Amendment)

Answer 21

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

Question 22

Broadcasting tape of illegally intercepted call (Privacy and the First Amendment)

Answer 22

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

Question 23

Heckler’s Veto

Answer 23

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

Question 24

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

Answer 24

A statute must only prohibit specific conduct constituting

(1) a clear and present danger
to a
(2) substantial interest of the state

Question 25

Shocking Speech

Answer 25

Can’t be restricted just b/c it’s offensive, unless likely to incite lawlessness and violence

Question 26

Why is 1st Amend Protecting Speech (4)

Answer 26

1. Marketplace of Ideas
2. Democracy and Self- Government
3. Self-Fulfillment
4. Negative Theories of Speech Protection - Distrust of governmental censorship

Question 27

Fighting Words - How many parties ?

Answer 27

2

• Speaker
• Person that wants to attack speaker b/c of words

Question 28

Incitement - How many parties (usually)?

Answer 28

3

• Speaker
• Audience
• People audience wants to hurt / injure

Question 29

Threats - how many parties ?

Answer 29

2

• Speaker
• Party speaker threatens

Threats must be -
Serious + Likely to happen

Question 30

Fighting words:

Answer 30

when directed at another person and likely to provoke a violent reaction

Question 31

Fighting words must have

Answer 31

A Hostile Audience

Question 32

Hostile Audience Test:

Answer 32

clear and present danger 
factors to determine if there is a clear and present danger:
>crowd control impossible
>speaker ignores police AND 
>speaker provokes