8) 1Am - Speech

Question 1

freedom of speech: source

Answer 1

1A: “Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peacably to assemble, and to petition the government for a redress of grievances”

Question 2

1A speech: scope

Answer 2

feds + state (14 DPC)

but do need state action, like always

Question 3

1A :generla principle

Answer 3

1A stops gvt from distorting the marketplace of ideas, esp re pol speech

Question 4

1A: content based restrictions: rule

Answer 4

content-based discrim by gvt –> SS! (usu –> unconst)

Question 5

1A: content based restriction: exs

Answer 5

1) censorship

2) viewpoint discrim

Question 6

1A: content base: cases held this speech ALLOWED

Answer 6

pol speech at parks
flag burning
can’t prohibit critical foreign gvt speech near embassies

Question 7

1A: content based restrictions: pass strict scrutiny

Answer 7

some can

ex: ban on child porn even if fake

Question 8

content-based restrictions: EXCEPTIONS: result

Answer 8

not subject to SS (often different test)

Question 9

unprotected or low-value speech: mnemonic

Answer 9

HAFWOUD

Question 10

unprotected or low-value speech: list

Answer 10

HA: hostile audience
FW: fighting words
O: obscenity
U: unlawful advocacy
D: defamation

Question 11

content-based restrictions: EXCEPTIONS:

Answer 11

1) unprotected or low value speech
2) gvt as speaker
3) content-neutral conduct regulation
4) content-neutral place, time, manner regulation

Question 12

unprotected/low value: rule

Answer 12

rational basis!

Question 13

unprotected: unlawful advocacy: def

Answer 13

speech inciting violence or other unlawful action

Question 14

unprotected: unlawful advocacy: test

Answer 14

1) subjective (intent of speaker): imminent, unlawful action +
2) objective: likely in obj fact to produce imminent unlawful action

Question 15

unprotected: fighting words: def

Answer 15

words likely to incite an ordinary citizen to acts of immediate physical retaliation aren’t protected

Question 16

unprotected: fighting words: reqs

Answer 16

• -direct personal insult (more than annoying or offensive)
• -BUT statute facially invalid if conduct proscribed is vague or overbroad
• -BUT statute facially invalid if designed to punish certain viewpoints

Question 17

unprotected: hostile audience: def/rule

Answer 17

imminent violent rp against speaker by crowd

BUT, police msut first make reasonable effort to control crowd (before intefering w speaker)

Question 18

unprotected: obscene speech: test

Answer 18

(all) (work as a whole)
1) prurient interests–based on local com standards
2) statute specifically defines sexual conent + patently offensive to local com standard
3) lacks serious literary, artistic, pol, or sci value (SLAPS)

Question 19

unprotected: defamation: rule

Answer 19

depends on:

1) P is pub official or pub figure or neither?
2) st involves matter of pub concern?

Question 20

unprotected: defamation: P is private person, subject is private concern

Answer 20

(speech not protected by 1A so any state defamation law ok)
strict liability ok
(SL: state saying falsity + damages is enough, w/o MR)

Question 21

unprotected: defamation: P is private person, subject is public concern

Answer 21

MR: negligence re truth or falsity of statement (SL not permitted)

Question 22

unprotected: defamation: P is public official or figure (regardless of subject)

Answer 22

P must prove actual malice (knows false or reckless disregard of truth/falsity

Question 23

unprotected: defamation: private person + public concern and false-light invasion of privacy (different tort)

Answer 23

P must prove actual malice

Question 24

unprotected: defamation: false-light invasion of privacy (different tort)

Answer 24

not liable if:
1) truthful info obtained from public record
OR
2) newsworthy + true

Question 25

low-value speech: aka

Answer 25

quasi-protected

Question 26

low-value speech: kinds

Answer 26

1) commercial | 2) sexual or indecent

Question 27

commercial speech: def

Answer 27

speech promoting commercial transaction

Question 28

commercial speech: test

Answer 28

1) no 1Am protection if false or advertising unlawful activity otherwise, this test (like IS): 1) substantial gvt interest 2) regulation directly advances gvt interest 3) reg not greater than nec to serve purpose

Question 29

commercial speech: examples of what state CAN"T ban

Answer 29

- -ads w drug prices | - -attys advertising

Question 30

commercial speech: ok for state to ban

Answer 30

- -L in-person solicitaiton | - -commercial billboards

Question 31

sexual/indecent speech: rule

Answer 31

speech fully protected but ok regulate on basis of secondary effects - -reg must serve substantial gvt interest - -must leave open reasonable alternative channels of com

Question 32

gvt as speaker: rule

Answer 32

gvt can say what it wants, no 1A problem comes up re whether speaker speaking on his own, or part of gvt

Question 33

conduct regulation: test

Answer 33

1) if law is regulating conduct + just incidental burden on speech, then ok if: 2) important gvt interests unrelated to content 3) no greater restriction than nec to serve interest

Question 34

time/place/manner restrictions: test

Answer 34

gvt can place reasonable restrictions on time/place/manner of speech in public areas. Reg must: 1) be content-neutral (subject matter + viewpoint) 2) narrowly tailored to important gvt interest 3) leave open alternative channels

Question 35

time/place/manner: rule re permits

Answer 35

states can require large gatherings to get permit for use of public property AS LONG AS: permit rules are specific, content-neutral grounds to approve or deny

Question 36

time/place/manner: exs: state CAN"T

Answer 36

- -require pay for actual expense of police protection - -completely ban door-to-door solicitation - -require religious or pol canvassers to register _ get a permit

Question 37

time/place/manner: exs: state CAN restrict:

Answer 37

- -volume + hours of amplifiers--ok require door to door solicitors to ID selves to authorities (crime prevention) - -ok post office stops certain person from mailing you things at your req - -ok buffer zones

Question 38

time/place/manner: protests on sidewalk in front of private home: rule

Answer 38

ok restrict if other areas of neighborhood are available and restriction is content-neutral

Question 39

time/place/manner: NOT PUBLIC PLACES

Answer 39

if gvt property but not public place (mil base, jail, gvt workplace, etc): ok regulate, if 1) viewpoint neutral (note: content restrictions ok) 2) rationally related to legit gvt interest

Question 40

time/place/manner: not public place: exs of what it's ok for gvt to do

Answer 40

- -prohibit protests at jail - -close mil base to pol speech - -regulate speech in gvt workplace - -sell space on busses for commerical advs but not pol - -public tv station can exclude candidate from debate based on neutral criteria

Question 41

time/place/manner: convert to public space

Answer 41

public school can't deny religious groups access (bc once make school public space, can't make content based restrictions)

Question 42

public employment / pol opinion: ok deny job for pol beliefs if:

Answer 42

1) high level policy-making job, OR 2) this test: a) active member of subversive org + b) w knowledge of illegal goals + c) intent to further illegal goals

Question 43

public employment: oath reqs

Answer 43

ok require oath to: 1) support constitution 2) oppose illegal overthrow of gvt only

Question 44

public employees: ok fire or discipline for speech if

Answer 44

1) not a matter of public concern, or | 2) yes public concern, but potentially disruptive

Question 45

school children can be disciplined for speech if

Answer 45

potentially disruptive

Question 46

prisoners' speech rights can be restricte dif

Answer 46

rationally related to legit penological objective

Question 47

prior restraint: def

Answer 47

blocking speech before uttered

Question 48

prior restraint: gen rule

Answer 48

strong presumption against consitutional validity

Question 49

prior restraint: exceptions

Answer 49

ok if: 1) classified military info 2) gvt ee pre-publication review (for ntl security)

Question 50

pretrial publicity: test

Answer 50

``` (usu can't do pretrial gag order) factors: 1) nature + extent of publicity 2) availability of other measures to mitigate risks of pretrial publicity 3) likely effectiveness of the measures ```

Question 51

pretrial publicity: potential other measures

Answer 51

1) voir dire 2) change venue 3) postpone trial

Question 52

prior restraint: movie censorship

Answer 52

ok if: 1) narrow + reasonable standards 2) immediate injunction 3) BOP censor 4) prompt judicial hg

Question 53

permit denials

Answer 53

1) if statute facially valid, must challenge in court (even if was applied unconstitutionally) 2) if statute is NOT facially valid, ok ignore if permit denied (or not even apply for one)

Question 54

erroneous injunction

Answer 54

still must obey r appeal

Question 55

problems w state regulations on speech1

Answer 55

1) overbroad | 2) vague

Question 56

overbroad restriction: def + result

Answer 56

state must restrict in narrow, specific way -- not overly broad bc dnw chill protected speech (exception to 3P standing) result: can't apply against ANYONE!

Question 57

vagueness restriction: def + result

Answer 57

gvt regulations must be drawn w narrow specificity, not vauge result: can't apply against ANYONE!

Question 58

freedom of press

Answer 58

no greater speech rights than member of public (still must testify at grand juries) radio + tv gets LESS Protection (bc license from gvt): ex ok gvt ban offensive sexual content tho cable tv: somewhat in btwn

Question 59

freedom of press: cable tv:

Answer 59

content neutral regulations --> intermediate scrutiny

Question 60

bar admission: communism

Answer 60

can't deny admission for past membership in communist party | but can refuse bar membership if refuse to answer questions re communism

Question 61

free speech: approach

Answer 61

1) protected at all? 2) content based restriction? 3) state action?

Question 62

constitutional: gen approach

Answer 62

1) state action? 2) state or fed? 3) if fed, power to do it? 4) either way: right infringed?