24. Freedom of Speech (1A/14A) Flashcards
What is required for restricting unprotected speech?
Strict scrutiny
1) Compelling interest
2) Narrowly tailored/Necessary
NO scrutiny
- Incitement of imminent lawless action
- Fighting words
- Obscenity
- Liquor regulation
- Defamation
- Commercial speech
What is required for restricting incitement of imminent lawless actions?
1) Clear + Present danger
2) Likely to cause action
3) Intent to cause action
What is required for restricting fighting words?
1) Personally abusive words
- NOT merely annoying words
- NOT punishment based on certain viewpoints (creed/race/gender)
2) Likely to incite imminent retaliation (from average person)
What is required for restricting obscenity?
Miller test
1) Appeal to prurient (sexual) interest (community standard)
2) Patently offensive (community standard)
3) Lacks serious value (reasonable person)
- Literary/Political/Science/Art
What are examples of obscenity?
Minors
1) Visual depiction
2) Minors
- NOT young looking adults
- NOT CGI
Land use/Zoning regulations
1) Limit (NOT ban)
2) Secondary effect: Crime/Property value related
Liquor regulation affecting free speech (21A)
- NOT irrational
Porn possession
- Right to sell/buy/transport
- Child porn possession
- NOT right to possession at home
What is required for restricting defamation?
Constitutional law defamation
1) Public concern/figure/official
2) Defamatory language
3) Publication
4) Falsity
5) Malice
Intentional infliction of emotional distress
1) Public concern/figure/official
2) Extreme + Outrageous conduct
3) Malice
4) Severe emotional distress
What is required for restricting commercial speech?
(Generally protected under 1A)
Unlawful
Misleading/Fraudulent (NOT truthful)
Disclosures
1) NOT unduly burdensome
2) Government interest in proving deception
3) Reasonably related
Intermediate scrutiny
1) Compelling interest
2) Directly advanced
3) Reasonably related
- Between goals + means
- Narrowly tailored
What type of forums can regulations of speech be made?
Public forum
- Historically open to speech
Designated forum
- Permanently/temporarily open for ANY speech
Limited forum
- Permanently/Temporarily open for LIMITED speech
Non-public forum
- NOT open to speech
Public schools
- Sponsor extracurricular activities
What is required for injunction/regulation of speech at public or designated forums?
Content-based regulation (Strict scrutiny)
1) Compelling interest
2) Narrowly tailored
Content-neutral regulation (Intermediate scrutiny)
1) Neutral both on its face + by application
2) Important interest
3) Narrowly tailored (NOT least restrictive means)
4) Leave open alternative channels of communication
What is required for regulation of speech at limited/non-public forums or public schools sponsoring extracurriculars?
1) Viewpoint-neutral
2) Legitimate interest
3) Reasonably related
What is required for government to regulate/fund its own speech?
Free Speech Clause (Restrict government regulation of private speech) (Rational basis)
1) Rationally related
2) Legitimate interest
Funding private speech (Viewpoint-neutral)
1) Reasonably related
2) Legitimate interest
Funding arts (Viewpoint-based) - Selective based on content of art
Place ‘permanent’ monument in public park
- Publicly/Privately donated
Spending programs
- NOT violate 1A
- NOT outside own scope
What is required for government to regulate public employees?
Restraints on employee’s speech (1A/14A)
- Made pursuant to official duties (on the job)
- Made re public concern (employer’s interest in efficient performance of public service > employee’s right to speech)
- Made re private concern BUT disruptive of employee’s workplace (employer has wide discretion to punish employee)
- ‘Federal’ employee’s ‘active’ participation in political campaign
- Hire/Fire/Promote employee (policy-maker) for speech that substantially interferes with their work (NOT re party affiliation/political views)
Force employee to make loyalty oaths (Constitutional process abidance)
- Swear to support Constitution
- Swear to ‘oppose’ (NOT avoid advocating) ‘illegal’ (NOT legal) overthrow of government
- NOT force to support flag
- NOT force to quit Communist Party membership
What exceptions may prevent regulations over speech?
Prior restraints (presumptively invalid) - Procedural safeguards
1) Speech NOT yet made
2) Narrowly tailored
3) Government burden: Prevent special societal harm
4) Prompt injunction
5) Final determination
Overbroad
- Punishes protected speech (substantial amount) + unprotected speech
- Punishes w/o just cause
Vagueness
- First case triggered by this regulation
- NO reasonable notice given to Citizen re specifity of law (Due Process Clause)
- 1A rights triggered (higher standard applied)
What is required for restricting true threats?
1) Serious expression of intent
2) Commit unlawful violence vs particular persons
What are examples of speech integral to criminal conduct that can be restricted?
Impersonating federal officers
Conspiracy/Solicitation to commit crime
Obtain illegal info
