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
