2nd Assess Flashcards
Miller Test for Obscenity
(a) Would the average person, applying contemporary community standards, find that the work as a whole appeals to the “prurient interest”;
(b) Whether the work describes or depicts sexual conduct specifically described by state law;
(c) Whether the work, taken as a whole “lacks serious literary, artistic, political, or scientific value.”
Child Pornography:
- All Banned
- Need not be obscene to be banned;
- Concern is with exploitation of actual children (secondary effects), protect the children
- so “virtual images” are protected;
Gov’t CAN regulate some speech - how or why?
These so-called “secondary effects”
- include quality of life in an area, and legitimate zoning regulations.
- time , place , manner
Because the speech is protected, Supreme Court takes a careful look so therefore they take it in as whole and content vs non-content
thus - can’t ban pornography because of its effects on the subordination of women
or
sweep too broadly (nudity ban)
- Attempts at creating an intermediate level of scrutiny for these cases has failed
What can the FCC do as a regulating Authority ?
FCC has broad authority to regulate even non-obscene speech b/c
- captive audience, limited bandwidth - (Pacifica ).
- extended even to “fleeting expletives” (though not as a matter of constitutional law).
BUT
Attempts to limit other forms of technology (porn phone services, internet) have been unsuccessful.
- b/c have to take an affirmative act to get / be exposed to it
Violent speech - Video games case- how is it treated?
Like any other speech
– strict scrutiny applies (Stevens, 2010; Brown, 2011).
** Strict Scrutiny Test [Content-based, so state needs a compelling reason with no less restrictive alternative.]
Commercial Speech - how is it treated ?
Test established in Central Hudson:
- Is it a Lawful Activity?
- Is speech truthful and not misleading ?
- Is government interest substantial?
- Does the regulation advance that interest?
- Is the regulation “no more extensive than is necessary to serve that interest”?
Commercial Speech “Vice” Exception
Didn’t take hold - Central Hudson Test is used for all
Content Based Speech
Reed v. Town of Gilbert (2015): “presumptively unconstitutional and…justified only if…narrowly tailored to serve compelling state interests.
- Burden on government.
- Viewpoint AND subject
Content Neutral
Law has more leeway,
but in general – since we’re still regulating speech – scrutiny is generally “heightened” when compared to other laws.
- Called “intermediate” Scrutiny
Intermediate Speech - O’Brien
Content-neutral as to the regulation of speech.
1. Whether the law is “related to the suppression of free expression.”
- If Yes = it’s content-based and strict scrutiny applies.
- If No = (as Court found was the case in O’Brien)
then next ask whether the law furthers a “substantial government interest.” ? - Whether the “incidental restrictions on alleged First Amendment freedoms [are] no greater than essential to furtherance of that interest.” ??
[Has been interpreted to require a “close tailoring,” not least restrictive means.]
FDA - WARNING! Cigarettes cause fatal lung disease.
Tobacco Co; “Most smokers do not contract fatal lung disease.”
FDA Tried to outlaw - what will happen / what is true?
a) The FDA’s action does not implicate the First Amendment;
b) The cigarette company will win, because the statement about fatal lung disease is true and not misleading;
* ** this is answer b/c it is NOT THE WHOLE TEST **
c) The FDA will win if it can convince the court that the rule is no broader than necessary to advance public health;
d) The FDA will win only if the new rule can satisfy the strict scrutiny standard.
Which of the following city ordinances is likeliest to survive judicial review if challenged as violative of the First Amendment?
a) an ordinance that allows parades only on weekends;
* * less restrictive on speech than “D” **
* * this is answer
b) an ordinance that allows parades to celebrate ethic, cultural, and religious subjects, but prohibits political marches;
c) an ordinance that allows military parades only;
d) an ordinance that disallows all parades.
State A passes a law that prohibits the display of political posters or signs, and the distribution of political campaign material, within one mile of the entrance to any polling place on election days. Based on governing Supreme Court precedent, which of the following is true?
a) the statute will be upheld;
b) the statute may be struck down if the court finds that the one mile “buffer” zone is wider than necessary to prevent voter intimidation and fraud;
* * this is the answer **
c) the statute will be struck down, because it is subject-matter based, and will therefore be subjected to strict scrutiny;
d) the statute will be upheld, because the First Amendment does not confer a right to distribute materials to unwilling recipients.
Symbolic speech (conduct) - content neutral O’Brien Test
Govt can regulate if
(1) it has an substantial interest
(2) govt interest is unrelated to the suppression of the message
(3) impact on communication is no greater than necessary to achieve govt’s goal
(4) Alternative methods of expression available
Nude dancing
Not Protected
Burning Cross
Protected ** (unless true threat) **
Obscenity
Not protected speech
(1) material must appeal to prurient interest, or shameful or morbid interest in sex
(2) material must be patently offensive based on community standards
(3) material must lack serious artistic, literary, political or scientific value (national standard)
Govt may not punish private possession
Govt can seize all assets of businesses convicted of violating obscenity laws
Profane and Indecent speech
generally protected
Except in schools, on radio
Commercial speech
Protected under intermediate scrutiny: narrowly tailored to achieve important govt interest; need not be least restrictive alternative
Exceptions: NOT protected
(1) advertising for illegal activity
(2) false and deceptive ads
(3) speech that inherently risks deception (e.g., in-person solicitation of clients by lawyers)
Content Based Regulation
Regulation seeking to forbid communication of specific ideas
-Strict scrutiny applies when there are subject matter or viewpoint restrictions by the gov’t.
Conduct incidental to speech regulation
- Can be regulated by content-neutral time, place, and manner restrictions
- Intermediate scrutiny applies. Example the city prohibits all parades in the park
Symbolic Speech / Conduct - content neutral O’Brien Test
-Gov’t may regulate conduct that comunicates if it has a Substantial interest unrelated to suppression of the message
and
- if the impact on the communication is no greater than necessary to acheive the goal.
- alternative methods of expression avail
- Flag burning - ok
- Draft Car burning - not protected because Gov’t need people to have cards
- Nude Dancing - not protected
- Burning a cross - protected unless to intimidate
Zoning Ordinances and 1st Amendment
OK to use zoning ordinances to regulate the number of location of adult bookstores and movie theaters
When is licensing valid
when it is content neutral
and has an important reason, does not leave discretion up to the one in charge and procedures are available
Strict Scrutiny under first amendment requires
compelling state interest and least restrictive means necessary
intermediate scrutiny under first amendment requires
Substantial state interest that are related to furthering that interest / narrowly tailored to be no more restrictive than necessary
Unprotected Forms of Speech:
Child Porn, Obscenity, Fighting Words, incitement, Defamation
Commercial Speech defined
- advertisement in some form
- referring to a specific product
- Spoken by someone who has economic motivation for the speech
Central Hudson Test for Commercial Speech :
* is it commercial speech * Lawful Activity ? 1. truthful and not misleading >if not - then it is not protected 2. Substantial govt interest 3. directly advance the govt interest 4. no more extensive then necessary
O’Brien Test: for Symbolic Conduct - Intermediate Content Neutral
- related to content (if yes then fail O’brien test) Regulation MUST BE Content Neutral - If NOT, then use Strict Scrutiny
- substantial/ important govt interest
- narrowly tailored / no
more restrictive than necessary - ample alternative channels
What is considered an important reason for licensing:
- preventing conflicting use of free space
- to prevent crime
- to prevent fraud
- protect privacy
Time, Place, Manner Restrictions
Refers to the ability of the govt to regulate speech in a public forum in a manner that minimizes the disruption of a public place while still protecting freedom of speech
- Secondary effects: crime, property values, etc
Content-based v. Content neutral?
1) Content based restrictions on speech generally must meet strict scrutiny.
There are two alternative ways of finding that the law is content-based:
a) subject matter restriction -depends on the topics of the message
b) viewpoint restriction -application of the law depends on the ideology of the speech
2) Content neutral laws burdening speech generally need only meet intermediate scrutiny
FCC v. Pacifica
a child was inadvertently exposed to indecent language when his father turned on the car radio.
Difference between internet and broadcasting
the internet does not use the limited public spectrum, and people are not as likely to be exposed inadvertently to sexually explicit material on the internet as they might be on broadcast stations.
Symbolic Speech / Expressive conduct
A hybrid form of expression in which conduct, such as burning a flag, is performed in a manner intended to convey a particular message and that message will be understood by the listener / viewer
What is a subject matter restriction?
Restriction on a topic, irrespective of ideology, e.g. ban on politics generally
What is a viewpoint restriction?
Restriction on an ideology, e.g. conservatism
What is the standard the government must meet in order to regulate symbolic speech?
Government must have a substantial interest unrelated to the suppression of the message
- intermediate scrutiny -
In order to survive intermediate scrutiny, the law must be
SUBSTANTIALLY related to an IMPORTANT government purpose. The law must be narrowly tailored.
Under intermediate scrutiny, the court looks at the government’s _____ purpose.
actual
In order to survive strict scrutiny, the law must be
NECESSARY to achieve a COMPELLING government purpose and must be the LEAST RESTRICTIVE means of achieving that purpose.
Is burning the American Flag a fighting word?
No. It is not directed at a specific individual.
Intermediate Scrutiny
Furthers an substantial government interest by means that are substantially related to that interest.
Narrowly Tailored to that interest
No More Restrictive Than Necessary
strict scrutiny
the higher standard of review that requires narrowly tailored and
least restrictive means to further a compelling governmental interest.
