Con Law - Free Speech

Question 1

What is the standard if the Government is regulating speech in a public forum?

Answer 1

1) Content-Neutral
2) Narrowly tailored to serve an important government purpose
3) Leave open adequate, alternative channels of communication (does does not have to be the least restrictive means, which is how it differs from SS)

Question 2

What is the standard when the Government is regulating speech in a limited/designated forum?

Answer 2

When the forum is open use public forum test:

1) content-neutral
2) narrowly tailored to serve an important government purpose
3) Leave open adequate, alternative channels of communication (does not have to be the least restrictive means, which is how it differs from SS)

When the forum is not open use:

1) reasonably related to some legitimate purpose
2) view-point neutral

Question 3

What is the standard when the Government is regulating speech in a non-public forum (places the Government owns but has not made open to the public for speech, like an airport)?

Answer 3

1) reasonably relax to some legitimate purpose

2) viewpoint neutral

Question 4

What is the standard when the Government has issued a prior restraint (court order/injunctions)?

Answer 4

1) must be the least restrictive means to achieve a compelling government purpose AND
2) Procedural Safeguards must be in place that must ensure restraint is 1) narrow; 2) reasonable; 3) definitely. Review and determination must be prompt

You can require a permit/approval process if there is 1) a reasonable justification; 2) no discretion/ “rubber stamp”; and 3) appeals process required

Question 5

When is a law vague?

Answer 5

One cannot determine what is prohibited and what is allowed under the law

Question 6

When is a law over broad?

Answer 6

The law regulates too much speech to the point where it restricts protected speech

Question 7

What is the standard when the government is regulating symbolic speech?

Answer 7

1) regulation furthers a important government interest;
2) Government interest is unrelated to suppression of the message
3) impact on speech is no greater than necessary to further the important government interest

Question 8

Incitement

Answer 8

A form of lesser-protected speech and Government can regulate if:
1) substantial likelihood that speech will bring about imminent illegal activity; and 2) speech is aimed at causing imminent illegality

Question 9

Fighting Words

Answer 9

A former of lesser-protected speech and government can regulate if:

1) Likely to cause an immediate, violent response against the speaker. (almost impossible to uphold these laws)

Question 10

Obscenity

Answer 10

Not protected if:

1) appeals to the prurient interest (community standard); 2) patently offensive in its sexual portrayal (community standard)
3) taken as a while, the material lacks serious literary, artistic, political, or scientific value (national standard)

Government may use zoning to regulate lewd speech or conduct if regulation is designed to combat “secondary effects

Question 11

Commercial Speech

Answer 11

Protected and regulations allowed if:

1) Serves a substantial government interest;
2) Directly advances that government interest;
3) is narrowly tailors to serve that interest

Unprotected if

1) False, misleading, or deceptive OR
2) Illegal or concerns illegal activity

Question 12

Defamation 1A Constraints`

Answer 12

Public Official/Public Figure - P must prove falsity and actual malice (knowingly or recklessly told a false statement) can get compensatory/punitive damages

Private person/matter of public concern - falsity, and negligence as to the statements falsity - must prove special damage, must prove actual malice for compensatory/punitive damages

Question 13

Regulating Expressive Conduct

Answer 13

1. Expressive Conduct

Protected speech can include not only written, oral, and visual communication, but also activities such as picketing and leafleting. Expressive conduct (or symbolic speech) may also be protected as speech, but it is subject to a lesser degree of protection. Governmental regulation of expressive conduct is upheld if:

i) The regulation is within the government’s power to enact (e.g., through a local government’s police power);
ii) The regulation furthers an important governmental interest;
iii) The governmental interest is unrelated to the suppression of ideas; and
iv) The burden on speech is no greater than necessary.

An example of permissible regulation of expressive conduct includes upholding a ban on public nudity, such as nude dancing in adult entertainment venues, pursuant to the important governmental interest in preventing the “harmful secondary effects” of adult entertainment on neighborhoods, which is unrelated to the suppression of expression. City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)

Question 14

Freedom of Association

Answer 14

1) government act is in pursuance of a compelling govt. interest
2) that interest cannot be achieved by less restrictive means

Can criminalize membership if
1) actively affiliated with a group involved with illegal activities
2) had knowledge of the groups illegal activities;
And
3) acted with specific intent of furthering those activities

Law requiring disclosure of group membership must meet SS if disclosure would have the effect of chilling association