Compelled, Less Protected and Unprotected Speech

Question 1

Compelled Speech

Answer 1

One can never be compelled to say anything
-in order for the government to make something say something they don’t want to say, the government must show more than a clear and present danger
The government cannot condition benefits based on one giving up their Constitutional rights
The government can compel a list of political contributions, but not if it will severely harm an individual (i.e. socialist party)

Question 2

Commercial Speech

Answer 2

Commerical speech occurs if someone is proposing a commerical transaction. Intermediate Scrutiny

Central Hudson Test
The speech must be:
-lawfully protected by the First Amendment (cannot be misleading or related to unlawful activity)
-Narrowly tailored (does not need to be the least restrictive means possible, but rather a reasonable fit. Cant be a total ban, b/c thats overbroad)
-to directly advance
-a substantial government interest (i.e. health safety, welfare)

Question 3

Low value speech

Answer 3

• The government cannot prohibit speech just because it might offend others
• Sexually explicit (but not obscene) speech is given rational basis protection
• Captive Audience Doctrine: When speech is broadcasted to individuals through a common medium, and individuals don’t have to seek out the speech themselves.

Question 4

Broadcasted Speech

Answer 4

-Speech trough Traditional broadcast media
=-The governmet can regulate indecent material to make sure it does not come across unexpectedly or come across children or individuals who will be offended by it.
=-The government will generally fail to ban speech through electronic media (internet, radio, television) if one has to work to get the information

Question 5

Incitement of Illegal Activity

Answer 5

Speech that advocates illegal acts. (unprotected-rational basis)
Brandenburg Test:
-Intent to cause imminent illegality
-Inciting imminent harm; and
-Liklihood to produce illegal action

Question 6

Fighting Words

Answer 6

Speech that provokes an audience into using illegal force and violence (unprotected-rational basis)

Must be
-Directed at a person (i.e. “fuck the draft” isnt)
-Likely to produce a violent response (must be more than emotional harm
-The restriction cannot be too narrow so as to become content-based. Must meet strict scrutiny unless
=-it directly advances the reason why the category of speech is unprotected; or
=-it is directed at remedying secondary effects

If regulating hate speech, must be narrowly tailored

Question 7

Hostile Audience Doctrine

Answer 7

Police can arrest hostile audience if:

• police cannot reasonably protect the speaker; and
• the speaker is in clear and present danger

Question 8

Libel/Slander & Public Officials

Answer 8

Can recover only if
-the individual is a public official/figure
=-Public official: anybody to do with policy or employed by the government
=-Public Figure: anybody who is intimately involved in events of public question or, because of their fame, shape events in areas of concern to socity
-The individual proves with clear and convincing evidence
==falsity of the statement
==and actual malice, in that speech was made with knowledge of falsity and with reckless disregard of the truth (negilgence isnt enough)

Question 9

Private individuals and libel/slander

Answer 9

Can only recover if

• the statement was false, and
• the speech was made with negligence.

Public concerns:must also prove actual malice for punitive damages
Private concerns: no proof of actual malice required for damages at all