Con Law I: Tests Flashcards
Memorize the various tests
Strict Scrutiny
Compelling state interest with no least restrictive means
Vagueness
A reasonable person cannot tell what is prohibited or permitted or that encourages discriminatory or arbitrary enforcement
Overbreadth
Regulates more speech than allowed for; it may be constitutional to regulate the speech of some but not others. Strong medicine that must be a SUBSTANTIAL breach on constitutional rights.
Prior Restraints (Generally)
Restraints on speech aimed to prevent the speech from occurring rather than to regulate it afterward will result in “direct, immediate, and irreparable damage to our nation or its people.
Licensing as a Prior Restraint
Where a licensing requirement gives arbitrary or unfettered discretion to government officials, the requirement is unconstitutional, and parties may act against the requirement.
Requires an objective/particularized standard for approval, and access to judicial review of decisions.
False Statements in the Press (Public Officials)
False statements made in the press about politicians cannot be prohibited unless the statements were intentionally made with malice or reckless disregard for the truth
Incitement of Illegal Activity
Brandenberg v. Ohio: Speech is protected unless the advocacy is directed with the intent to incite or produce lawless action and is likely to produce such action. 1) Intent to incite; 2) harm is likely to arise; 3) the harm is imminent
True Threat
1) reckless; 2) inteded to cause disturbance of the peace
Fighting Words
Words by which their very utterance inflicts emotional injury or tends to incite an immediate [violent] breach of the peace [against the speaker]. Chaplinsky v. New Hampshire
Hostile Audience
State police power to prevent the breach of peace may allow lawful speakers to be removed when their words lead to hostile crowd incitement
Obscenity
Miller Test:
(1) Whether “the average person, applying contemporary community standards,” would find that the work, taken as a whole, appeals to the prurient interest;
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; (3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Intermediate Scrutiny
Significant government interest, narrowly tailored to support the interest, and leaves suitable alternatives for expression
Government v. Private Speech
Reasonable person standard
Contrary Speech
Cannot force parties to align with/include speech or parties with differing viewpoints, even if on protected grounds
Child Pornography
Ferber Test: Compelling state interest exists to prevent such conduct; conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed
Test For Symbolic Speech Regulation
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government:
1) if it furthers an important or substantial governmental interest;
2) if the governmental interest is unrelated to the suppression of free expression;
3) and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to further that interest.
Central Hudson Test (Commercial Speech)
Whether the first amendment protects the speech
Whether the government interest is substantial
Whether the regulation directly advances the government interest
Whether it is more extensive than necessary to serve the interest
Defamation of Public Officials
They can only win where they can prove the falsear and convincing evidence and prove malice (knowing it was false or acting claims with cle in reckless disregard of the truth) in the speaker.
Public Official (Defined)
“[T]hose among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” The Court said that public officials are those who hold positions of such “apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it.”
Public Figure
a person who voluntarily and affirmatively thrusts themselves into the “limelight”; the same test applied as done to a public official
Limited Public Figure
created as a result of specific purpose, and must apply the actual malice standard only for the matters for which they are public, otherwise the negligence standard may be applied
Private Parties as Plaintiffs
Private party statements of public concern may recover only compensatory damages (negligence standard), unless malice is proven then they can recover punitive damages as well
Publicity of Private Matters
A private plaintiff does not have a right to be free from private affairs if the information is available to the public
- The information shared was publicly available
- The issue is regarded a public concern
- The information presented was truthful
- Such information would only be prohibited–if an only if–there was an interest of the HIGHEST ORDER
Right of Publicity
Plaintiff’s have a right to control the commercial value of their name, likeness or performances, but may only recover if they can prove actual damages.
Racist Speech
Generally protected by way of strict scrutiny; unless they can prove intent to intimidate . . . a person or group of persons in fear of bodily harm (I.e., assault)
Zoning Regulations of Speech
Protected where there is a legitimate government interest and the legislation is enacted with a substantial nexus to that interest
O’Brien Test (Gov. Restriction of Conduct that Communicates)
- If it furthers an important or substantial governmental interest
- If the governmental interest is unrelated to the suppression of free expression
- And if the incidental restriction on alleged freedoms is no greater than is essential to the furtherance of that interest
Conduct that Communicates
- Conduct made with a present intent to convey a particularized message
- That message is likely to be understood by those who view the conduct/message
McCutchen v. Federal Election Commission
Held that congress can prevent corruption through contributions only where it would lead to “quid pro quo” corruption. The appearance of mere influence or access is not enough, but must show an effort to control the officeholder’s official duties.
Citizens United v. Federal Election Commission
Corporations, like natural persons, are protected by the First Amendment. Therefore, their expenditures are protected so long as they do not show signs of corruption as a result of such spending. In particular, quid pro quo corruption.
Non-Protected Commercial Speech
- Including true advertisements that inherently risk deception
- Trade names that pose an inherent risk of deception
- Attorney solicitation of services under particular circumstances
Regulation of Conduct mixed with Speech
When speech and nonspeech elements are combined, sufficient government interest in regulating the nonspeech can justify incidental limitations of First Amendment Freedoms.
Traditional Public Forum
Established by a long tradition of being dedicated to debate and assembly (streets, parks)
TPF Restriction (Rule)
- Content Neutral State Interest (unless it can survive strict scrutiny)
- Reasonable time, place, and manner that serves an important government interest w/ adequate alternative spaces
- Clear licensing criteria that leave for no discretion, prompt licensing determination, and judicial review
- Narrowly tailored to satisfy the interest
Designated Public Forum (Definition and Rule)
Spaces that are designated to be public forums are subject to the same standard as traditional public forums–they are not required to remain open
Created where the space is designated for general purposes
Limited Public Forum
Defined: Designated forum for limited/specific purposes and restricted for others
Regulations:
1. Dependent on what is reasonable in light of the purpose served by the forum
2. Must be justified in reserving its forum for certain groups or the discussion of certain topics
