ConLaw4

Question 1

FIRST AMENDMENT

Free Speech approach:

Answer 1

1) G’t Action
2) Facial+ /as Applied Attacks [CU-POV: Content, Unfettered, Prior Restraint, Overbreadth, Vagueness]
3) Protected =>SS if Content-based
4) +UN/Less protected: PEDO PIC

Question 2

CONTENT-BASED regul. of SUBJECT MATTER … +CA:

[Note: State requiring the display some message =regulating content.]

Answer 2

or VIEWPOINT of a Message triggers SS IF: Speech is PROTECTED.
SS is: … least restr. means.
CA: BUT a RESTR. based on SM of LESS or UNprotected speech may be regulated: IF it is VIEWPOINT Neutral.
[=ideology. SM=pol. topic].

Question 3

CONTENT-NEUTRAL regulation of ...:  
[CA: TARGETS a MESSAGE 
/Unduly constricts FLOW of speech 
“No parades in the city park”]
[Note: Right to Notice+Hrg b4 an INJ. is granted limiting the TPM of speech. CA: Emergency]

Answer 3

TIME, PLACE, MANNER as a regulat. of CONDUCT is UPHELD if it’s [ca.IM]:
1) “NARROWLY” TAILORED to Serve an IMPORTANT (/Signif.) G’t PURPOSE
2) LEAVES open ALTERN. CHANNELS of Communicat.
[=not Least Restr. Altern.]

Question 4

UNFETTERED DISCRETION to licensing officials …:

[Permit fees for public demo =>MLK can ignore]

Answer 4

is facially VOID!
G’t MAY require a LICENSE for SPEECH if: 
1) it has an IMPORTANT REASON &
2) Law has PROCED. SAFEGUARDS
[incl. ARTICULATED Std.s 
& a Right to APPEAL.]

Question 5

PRIOR RESTRAINT is … +CA:

OK to ignore FACIALLY Void (=overbroad /vague) law.
CA: Must OBEY Ct. order /INJ until law is Deemed unC.

Answer 5

a G’t Restriction that STOPS speech before it occurs.
Valid IFF: there is a
CLEAR & PRESENT DANGER. SS
[GAG ORDER /Pre-Publication].

Question 6

VAGUENESS:

Answer 6

A Statute is FACIALLY void if:

it’s so UNclearly DEFINED that a person of ORDINARY intelligence canNOT DISTINGUISH which Conduct is PROHIBITED.

Question 7

OVERBREADTH:

Answer 7

A law that PUNISHES both PROTECTED speech & UNprotected speech or conduct is FACIALLY VOID.

[“All …”. Unlimited discretion =subst. overbroad]

Question 8

SYMBOLIC SPEECH =conduct that communicates.
[Protected: Flag/Cross burning (CA: INT to threaten)
CA: Ban burning DRAFT CARDs

Answer 8

G’t can regulate iff:

1) G’t has IMP. PURPOSE
2) UNrelated to the SUPPRESSION of the message
3) & the IMPACT on COMMUNIC. is NO GREATER THAN NECESS. to achieve that purpose.

Question 9

ANONYMOUS SPEECH …:
–ELECTION Funding: Can Limit [individuals’] CONTRIB. to Politician’s CAMPAIGN
CA: EXPENDITURE LIMIT
[$ to Lobby group] =unC]

Answer 9

is Protected speech.

[OK to circulate ANONYMOUS Election leaflets.
b/c FORCING DISCLOSURE can have a CHILLING Effect]

Question 10

UNprotected & LESS Protected Speech under 1stAM. Speech is NOT Protected from CONTENT Regulation if it is [LIST: PEDO PIC] …:

Answer 10

1) PRIVACY
2) (Speech by G’t) E’EEs =unProt. if.
3) DEFAMATORY =unProt.
4) OBSCENE =unProt. & sexually-oriented speech
5) PORN
6) INCITEMENT OF ILLEGAL ACTIVITY =unProt.
7) COMMERCIAL Speech =some
+Other G’t restrictions

Question 11

INCITEMENT OF ILLEGAL ACTIVITY: G’t may CRIMINALIZE speech if …:
[Can’t say to angry mob:
“Let’s go & shoot at the White House!”
CA: No Clear & Present danger b/c audience UNlikely to respond to “get Ur guns”]

Answer 11

1) CONTENT is DIRECTED to cause IMMINENT LAWLESS ACTs 2)& there’s a SUBST. LIKELIHOOD.
BUT FIGHTING Word Statutes: Often VAGUE, OVERbroad, +NOT VIEWpoint Neutral
[Note: Can STOP speaker if:
Genuine Likelihood of immed. Violence.]

Question 12

OBSCENITY & Sexually-oriented speech is UNprotected if under the MILLER TEST: the …

[G’t may seize ASSETS of biz. convicted of violating obscenity laws.]

Answer 12

Material TAKEN as a WHOLE:

1) APPEALS to the PRURIENT interest in sex under LOCAL standards,
2) is PATENTLY OFFENSIVE to the avg. person in the COMMUNITY
3) & LACKS SERIOUS “LAPS” value, under an OBJ. NAT’L std.

Question 13

CA to Miller TEST:

Answer 13

PRIVATE POSSESSION
of obscene material is not punishable.
CA: CHILD PORN: 
Total BAN ok even if technically NOT Obscene.
[CCA: CPU created => use Miller]

Question 14

G’t MAY use ZONING ordinances …:

Answer 14

/impose LICENSE REQs to regulate locations [=PLACE] of adult movie theaters.

[Cf. TOTAL ban on Nude dancing is JUSTIFIED due to adverse EFFECTS on community]

Question 15

PROFANE & OFFENSIVE speech [F the draft] … +CA:

Answer 15

[SS=>] canNOT be prohibited EXCEPT:

1) in SCHOOLS
2) in BROADCAST MEDIA, i.e., Miller Obscenity Test doesNOT apply. (CA: Cable TV).
3) 21st AM to restrict ADULT Speech in bars w/ Liquor Lic.

Question 16

COMMERCIAL Speech:

[CA: even True comm. speech, if INHERENT RISK OF DECEPTION =Compelling enough to justify 1stAM viol. =>G’t can prevent Profess. from advert. /practicing under a Trade Name. /in-person Atty Solic. (30-day after accident =leaves altern. MEDIA [/mail /Non-L.] available]

Answer 16

a) GR PROTECTED, but FALSE or DECEPTIVE COMM. speech is UNprotected by 1st AM (=> MAY REGULATE Content! [cocaine ads])
b) OTHER COMM. SPEECH: IM:
1) “NARR.” TAILORED
2) to DIRECTLY ADVANCE a
3) SIGNIFICANT G’t INTEREST
(=IM =not Least Restr. Altern.
[ban all beer ads])

Question 17

[ Which MEDIA enjoy SS ?]

Answer 17

Regulation of:
/Internet /Cable TV /Newspaper
CA: IM:
Radio & TV b/c the “airwaves are limited.”

Question 18

DEFAMATION is …:
[PURE OPINION is actionable:
IF Suff. FACTUAL to be provable TRUE or FALSE by ev.] [PUNITIVE DMG: req’ NO actual malice.
SLANDER: requires ACTUAL INJURY. DMG are PRESUMED for Libel & Slander per se.

Answer 18

UNprotected speech:

a) PUBLIC FIGURE / OFFICIAL:
1) FALSITY 2) ACTUAL MALICE (=K. of Falsity /RECKL. DISR).
b) PRIVATE Party
- -If Matter of PUBLIC Concern:
1) FALSITY 2) at least N.
- -NOT matter of PUBLIC Concern:
1) FALSITY 2) PUBLICATION

Question 19

Liability for Reporting if PRESS receives ILLEGALLY INTERCEPTED CALL:

Answer 19

No Liability for TRUTHFUL REPORTING if:
1) Press didNOT Participate
2) Matter of Public Concern
[=>May publish rapeV.’s name from publ.pol.report
CA: G’t may LIMIT its OWN DISSEMINATION of info to protect s.o.’s Privacy.]

Question 20

Trial Access to PRESS:

Answer 20

Public & Press have 1st AM right to ATTEND (at least) Criminal Trial & PRE-Trial Hearings.

Question 21

Speech by PUBLIC EMPLOYEE Protected by 1st AM?

EMPLOYEES’ Political Views …:

Answer 21

w.r.t. matter of PUBLIC Concern are PROTECTED speech (=> SS !)
CA: DEFER to Employer if NOT Matter of PUBLIC Concern.