con law Flashcards
the press clause
congress shall make no law abridging the freedom of speech, or of the press
only applies to congress through 1st amendment; but extends to all governments through the 14th amendment due process clause
conduct is considered speech
spence test:
the Spence test; conduct will be considered expressive (1) if the person extending conduct intending to convey a message through conduct, (2) and were the people witnessing the conduct likely to understand the message
if spence test is passed, apply O’Brein to consider of abridgement is constitutional
Obrein:
a governmental regulation is sufficiently justified if it is within the constitutional power of the gov; if it furthers an important or substantial gov interest if the gov interest is unrelated to the suppress of free expression; and if the incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of the interest
- the gov bears the burden of proving that the (1) law furthers an important government interest, (2) the interest is unrelated to the suppression of free speech and (3) the law is substainstlly related to furtering the gov interest
ways speech can be abridged
-
abridgment of speech is anything that punishes you for speaking:
- *criminal punishment
- *tort liability
- *compelled speech
- freedom of speech includes the right to not be compelled to speak
- *interference with freedom of association
- in addition to right to speak you have a right to get together to communicate message *unconstitutional conditions
- when gov conditions get a benefit when surrendering free speech right
- ex: you can have drivers license, but you can’t criticize gov
- ex: rumsfeld case; you can have money if you don’t speak out against
in deciding if law is constitutional; content based v content nuetral
does the application of the law depend upon the message/content being communicated?
content based (strict scrutiny will apply)
- targets speech based on it communicative content
- when gov regulates based on content, the gov is deciding what ideas can be heard, and the court considers that to be the gravest threat to the marketplace of ideas
ex: subject matter & viewpoint discrimination
content nuetral (intermediate scrutunity will apply)
- egulates speech regardless of message
- rules for aesthetics, some rules for tranquility, so there isn’t parties in backyards at 3pm; need rules for
order purposes (15min)
time, place or manner test
- laws are valid if justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant gov interest and leave open ample alternative channels for communication of information
strict scrtunity
very rarely passes
strict scrutinity:
- utilized when theres a realistic possibility that the suppression of ideas is afoot
- gov bears the burden of proof in showing that the law was necessary to serve a compelling state interest
- (1) gov end must be compelling and (2) the means used to achieve this end must be necessary or narrowly tailored
- necessary means the must be not be any least speech restrictive means to achieve the governments purpose
intermediate scrutinity
more likely to pass
intermediate:
- gov bears the burden of proof in showing that the substantially related to an important government interest
(1)- gov end must be important
and (2) means uses to advance this end must not burden substantially more speech than necessary
how restraints can be unconst
vagueness
- a vague law is a law that fails to give a reasonable person adequate notice as to what actions are prohibited; where men of common intelligence must guest the law’s meaning
overbreadth → (facially or as applied challenge)
- law regulated unprotected speech, but it also regulates protected speech
- will be facially invalid if substantially overbroad
- otherwise, can challenge as applied to individual party
- chills protected speech which is why the courts do not like it
prior restraints → tries to stop people before they speak as opposed to after they speak
- very hostile to prior restraints (stemming from england and the origination of printing press)
- liberty of the press consists in laying no previous restraint supon publications
- any prior restraint, comes with a heavy presumption of unconstitutionality
catergories of unprotected speech
incitement
fighting words
hostile audience
true threats
obscentity
child porno
speech intergral to a crime
incitement
speech that encourages law breaking
test utilized is bradenburg which is:
(1) speech explicitly or implicitly encourages the use of violence or lawless action; (VOLLA) (2) the speaker intended that the speech would result in the use of violence or lawless action; (3) the imminent use of violence or lawless action was the likely result of speech
fighting words
speech that encourages people to attack the speaker
(1) those which by their very utterance inflict injury or (2) tend to incite an immediate breach of peace
- mainly just (2) → speech that tends to incite an immediate breach of peace; only applies to remarks that would cause acts of violence
- what men of common intelligence, would understand be likely to cause an average addressee to fight → must be a (1v1 interaction)
such utterances are of no essential part of exposition of ideas; any value is outweighed by the social interest in order and morality (chaplinsky)
hostile audience
speech to a audience, but saying something that audience hates
content of what you are saying provokes audience to want to attack
speech is protected unless (1)creates and present danger where speaker passes the bounds of argument or persuasion and (2) undertakes to incitement to riot; the police may arrest him to prevent a breach of peace
used to be determined based on the crowd usiing the hecklers veto but problem with allowing police to arrest speaker if crowd gets sufficiently rowdy is that it gives the crowd the power to decide who speaks which is called hecklers veto
true threats
encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular group of individuals
- speaker need not actually intend to carry out threat; but the prohibition of true threats protects individuals from the fear of violence and from the disruption that fear engenders
to establish someone made a true threat, a person must have a culpable reckless state of mind when they make the statement
- conscious disregard of a substantial and unjustifiable risk resulting in harm to another
obscenity
implicit in the history of first amendment is the rejection of obscenity as utterly without redeeming social importance
(sex and obscenity are not the same thing)
miller test (affirms obscene speech as unprotected
- (1) whether the avg person applying contemporary community standards would find that the work taken as a whole, appeals to prurient interest (shameful morbid interest in nudity, sex going beyond societal limits of candor)
(2)whether the work depicts of describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and
(3)whether the work taken as a whole, lacks serious literary, artistic , political, or scientific value (on a national level not community standard)**
public officials burden in defamation
must show false statement of fact made knowledge or reckless disregard for the validity of statment and must be shown by a preoponderance of evidence
- must prove actual malice for public officials to recover for defamation
- knowledge it was false
- or with reckless disregard (KORD)
- burden on plaintiff to show..
- must be shown by convincing clarity (higher standard then preponderance of evidence)
public figure & their burden
-
all purpose public figure
- so prominent for everything
-
limited public figure
- someone with regard to some issue has thrust themselves into the public eye
if plaintiff is public figure they still have to meet actual malice
private person matter of public concern
- depends on whether the controversy is a matter of public concern must at least show neg to win
- burden to prove false
- can get actual damages just based on neg but if they want presumed must show actual malice
private person, private concern
- can get presumed and actual without having to show actual malice
- but if they just want damages they just have to prove whatever standard case sets forth
matters of public concern are
speech deals with matter of PC when it can be fairly considered as relating to any matter of political, social, or other concern to the community, and it is a subject of legitimate news interest
false light privacy (for both private and public figures)
false statements, that are highly offensive to a RPP
false statements that are positive can still be actionable
publication of private facts
-
publication of true facts that CL would regard as private
- states that allow, require disclosure be public and highly offensive to reasonable person of true facts (sex tape)
disclosing true facts that are highly offensive to a RP
instrusion upon seclusion
one who intentionally intrude upon seclusion of another is liable to the other if the intrusion is highly offensive
appropriation of right of publicity
protects commercial value of your NIL
IIED
when defendant by extreme and outrageous conduct, intentionally recklessly caused victim severe emotional distress
public figures cannot recover unless they show
must show that a false statement of fact was made with actual malice with knowledge the statement was false with reckless disregard to whether or not it was true
commercial speech
speech trying to sell you goods → in convential sense it is advertising, but it doesn’t encompass all advertising just advertising for goods and services
commercial speech is protected, but if its false of misleading or broadly defined or advertising illegal product it is not protected
central hudson test:
- does speech advertise illegal activities false or deceptive advertsing?
- does the restriction on speech serve a substaintial gov interest?
- does the regulation of speech directly advance the governments interest?
- is the regulation of speech no more extensive than necessary to achieve the governments interest? (intermediate)
