Constitutional Law AMP - Freedom Of Speech And Assembly Flashcards
The following acts may constitute speech protected by the First Amendment except:
A Organization of a private parade
B Saluting the United States flag
C Refusal to display a state license plate motto
D Government placement of a permanent monument in a public park
D
Government placement of a permanent monument in a public park is not protected speech within the First Amendment. The First Amendment restricts government regulation of private speech; it does not address or limit government speech. A permanent monument on public land is considered government speech and thus does not give rise to First Amendment concerns. Refusal to salute the United States flag was found to be a form of speech within the First Amendment, and the Supreme Court found that the government could not force a public school student to salute the United States flag against his will; the First Amendment protects the freedom not to speak in some cases. Display of a state license plate motto was also found to be a form of speech within the First Amendment. And the Supreme Court has held that a state could not punish a driver for covering the state motto on a license plate when the motto reflected ideas with which the driver disagreed (i.e., “live free or die”). Organization of a private parade was also found to be protected expression. Thus, the Supreme Court held that private organizers of a parade could not be forced to take parade entrants expressing a (pro gay and lesbian) view with which the organizers disagreed. QUESTION ID: L0079A Additional Learning
As a general rule, the press’s First Amendment rights are _________ the public’s First Amendment freedom of speech rights.
A Broader than
B Narrower than
C The same as
C
As a general rule, the press’s First Amendment rights are the same as the public’s First Amendment rights. However, some First Amendment issues often arise only when the press is involved (e.g., publication of truthful information that may have been unlawfully obtained in the first instance; right to attend trials and pretrial proceedings). From the above, it is clear that the broader than and narrower than choices are incorrect. QUESTION ID: L0102A Additional Learning
Which of the following is not among the safeguards required by the Supreme Court in prior restraint cases?
A Standards must be narrowly drawn and definite
B Promptness in seeking an injunction
C A bond for damages
D Prompt and final judicial determination of the validity of the restraint
C
The Supreme Court does not impose a bond requirement in every case seeking a prior restraint. The Court does impose a number of procedural safeguards to ensure that the restraint is justified, including all three of the other choices: Standards must be narrowly drawn and definite; the restraining body must promptly seek an injunction; and there must be a prompt and final judicial determination of the validity of the restraint. QUESTION ID: L0101 Additional Learning
Under the Free Speech Clause, a regulation of speech on a particular topic in a nonpublic forum must be __________.
A Viewpoint neutral
B Necessary
C Narrowly tailored
D Content neutral
A
A regulation of speech on a particular topic in a nonpublic forum must be viewpoint neutral—it cannot permit presentation of one side of an argument and exclude the other. The term content neutral refers to a regulation that is neutral as to subject matter as well as to viewpoint. The terms narrowly tailored and necessary refer to whether a regulation burdens or does not burden substantially more speech than is required to advance the particular government interest. QUESTION ID: L0087B Additional Learning
A statute or ordinance that burdens speech based on its content violates the First Amendment unless it is:
A Substantially related to an important governmental objective
B Narrowly tailored to achieve an important government interest
C Rationally related to a legitimate state interest
D Necessary to serve a compelling state interest
D
A statute or ordinance that burdens speech based on its content violates the First Amendment unless it is necessary to serve a compelling state interest. “Narrowly tailored to achieve an important government interest” is an intermediate level of scrutiny and is too low a standard for regulations based on content. However, an intermediate standard of scrutiny often applies to non-content-based regulations of the conduct related to speech. “Substantially related to an important governmental objective” also reflects an intermediate level of scrutiny and therefore is incorrect because it is too lenient a standard for regulation of speech based on content, as explained above. “Rationally related to a legitimate state interest” is the most lenient standard of scrutiny applied under the First Amendment and generally does not apply in cases of content regulation. QUESTION ID: L0080A Additional Learning
When a private individual is suing for defamation arising from a statement regarding a matter of public concern, what is the minimum level of fault that the individual must prove in order to prevail?
A None
B Malice
C Negligence
D Colloquial
C
Negligence is the minimum level of fault that a private individual must prove when suing for defamation arising from a statement regarding a matter of public concern. Fault must be proved in such cases, in order to assure that the First Amendment’s freedom of speech is not trampled when it comes to matters of public concern, but the Supreme Court has held that negligence is a sufficient standard. Malice was defined by the Supreme Court in New York Times v. Sullivan as: (i) knowledge that the statement was false, or (ii) reckless disregard as to its truth or falsity. The Supreme Court does not apply this onerous standard when a private individual is suing—even regarding statements on matters of public concern. None is incorrect. While a plaintiff in a defamation suit not involving the First Amendment need not prove fault, this is not so in the case of a private individual suing for statements about him regarding a matter of public concern. Colloquial is not a fault standard. Colloquium in a defamation case refers to the requirement that the statement must be of or concerning the plaintiff. QUESTION ID: L0096 Additional Learning
The requirement that, to be valid, government regulation of speech must be content neutral, be narrowly tailored to serve an important interest, and leave open alternative channels of communication applies to speech occurring in __________.
A Public forums and designated public forums
B Limited public forums and designated public forums
C Public forums and limited public forums
A
Speech occurring in public forums and designated public forums can be regulated by time, place, and manner regulations that are content neutral, are narrowly tailored to serve an important interest, and leave open alternative channels of communication. A public forum is public property such as streets and public parks that have traditionally been open to speech-related activity. A designated public forum is property that, although not historically open to speech-related activity, has been made available by the government for such activity by practice or policy. The test for the regulation of speech taking place in limited public forums, such as government property that is open for speech or speech-related activity only on a particular topic, is whether the regulation is viewpoint neutral and reasonably related to a legitimate government purpose. Thus, the answer choices that include “limited public forums” are not correct. QUESTION ID: L0085B Additional Learning
Under the Free Speech Clause, an overbroad regulation:
A Prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest
B Gives government officials unbridled power over speech and speech-related conduct
C Does not give people reasonable notice of what speech or speech-related conduct is prohibited
D Cannot be enforced against anyone
A
An overbroad regulation is one that prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest. Overbroad regulations of speech are unconstitutional, but it is not necessarily true that they cannot be enforced against anyone. An overbroad regulation that prohibits a substantial amount of protected speech, judged in relation to the regulation’s plainly legitimate sweep, is facially invalid and may not be enforced against anyone. However, if a regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected. A regulation that does not give people reasonable notice of what speech or speech-related conduct is prohibited is a vague regulation and will be held void for that reason. The concern is that if a person is afraid to speak because he does not know what is unlawful, constitutionally protected speech will be curtailed as well. If a regulation gives government officials unbridled power over speech and speech-related conduct, without further guidelines or limits on the power, the regulation violates the First Amendment for that reason, but it is not considered “overbroad.” QUESTION ID: L0082A Additional Learning
The First Amendment provides, among other things, that government may make no laws infringing the freedom of speech.
Under the First Amendment, a statute or ordinance that burdens speech based on its content generally must be __________ in order to pass constitutional muster.
A narrowly tailored to achieve an important government interest
B substantially related to an important governmental objective
C rationally related to a legitimate state interest
D necessary to serve a compelling state interest
D
A statute or ordinance that burdens speech based on its content must be necessary to serve a compelling state interest in order to pass constitutional muster. “Narrowly tailored to achieve an important government interest” is an intermediate level of scrutiny and is too low a standard for regulations based on content. However, an intermediate standard of scrutiny often applies to non-content-based regulations of the conduct related to speech. “Substantially related to an important governmental objective” also reflects an intermediate level of scrutiny and therefore is incorrect because it is too lenient a standard for regulation of speech based on content, as explained above. “Rationally related to a legitimate state interest” is the most lenient standard of scrutiny applied under the First Amendment and generally does not apply in cases of content regulation. QUESTION ID: L0080 Additional Learning
The First Amendment’s protection of free speech encompasses more than just spoken words and writings. It can reach conduct or objects that convey messages including paintings, statues, and monuments.
A government decision to erect a permanent monument on public land is:
A Subject to strict scrutiny under the Free Speech Clause
B Subject to intermediate scrutiny under the Free Speech Clause
C Not restricted by the First Amendment’s Free Speech Clause
C
A government decision to erect a permanent monument on public land is not restricted by the First Amendment’s Free Speech Clause. That clause restricts government regulation of private speech; it does not address or limit government speech. The erection of a monument on public land is considered government speech so the Free Speech Clause does not apply. The choices indicating that the government’s decision to erect a permanent monument is subject to strict scrutiny under the Free Speech Clause or subject to intermediate scrutiny under the Free Speech Clause both are incorrect because, as indicated above, the decision is a form of government speech which is not within the ambit of the First Amendment. QUESTION ID: L0078A Additional Learning
Which of the following statements regarding the right of the press to attend criminal trials and pretrial hearings is correct?
A A trial judge may not exclude members of the press based on the age and sensitivities of a child sex crime victim.
B The right of the press to attend criminal trials and pretrial hearings is broader than the right of the public to attend such hearings.
C The right of the press to attend criminal trials and pretrial hearings is narrower than the right of the public to attend such hearings.
D A pretrial criminal proceeding may be closed to the press if the closure is essential to preserve a higher value and the order is narrowly drawn.
D
It is true that a pretrial criminal proceeding may be closed to the press if the closure is essential to preserve a higher value and the order is narrowly drawn. The First Amendment guarantees the public and press a right to attend criminal trials. But the right may be outweighed by an overriding interest articulated in findings by the trial judge. (See, e.g., below.) The right of the press to attend criminal trials and pretrial hearings is NEITHER broader nor narrower than the right of the public to attend such hearings. Generally, the First Amendment rights of the press and the public are the same. A trial judge MAY exclude members of the press based on the age and sensitivities of a child sex crime victim. Although criminal trial and pretrial proceedings generally must be open to the public, as discussed above, the right may be outweighed by overriding interests articulated in findings by the trial judge. The Supreme Court has found that the government has a compelling interest in protecting children who are victims of sex offenses. Thus, portions of trials in which such children testify may be closed to the public and press if the trial court makes a finding that such closure is necessary to protect the child in the individual case. QUESTION ID: L0103 Additional Learning
Which of the following is part of the Supreme Court’s definition of obscenity?
A The material portrays sex in a patently offensive way
B The material incites lust
C The material is designed for a clearly defined deviant sexual group
A
Portrays sex in a patently offensive way is the correct choice. The Supreme Court has defined obscenity as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards, (i) Appeals to the prurient interest in sex, (ii) Portrays sex in a patently offensive way, and (iii) Does not have serious literary, artistic, political, or scientific value. Material designed for a clearly defined deviant sexual group is not part of the Supreme Court’s definition of obscenity. Material that incites lust is also not part of the definition insofar as lust may include a normal interest in sex. QUESTION ID: L0092A Additional Learning
Regarding the First Amendment freedom of speech, an overbroad regulation is one that __________.
A prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest
B gives government officials unbridled power over speech and speech-related conduct
C cannot be enforced against anyone
D does not give people reasonable notice of what speech or speech-related conduct is prohibited
A
An overbroad regulation is one that prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest. A regulation that does not give people reasonable notice of what speech or speech-related conduct is prohibited is a vague regulation and will be held void for that reason. The concern is that if a person is afraid to speak because he does not know what is unlawful, constitutionally protected speech will be curtailed as well. If a regulation gives government officials unbridled power over speech and speech-related conduct, without further guidelines or limits on the power, the regulation violates the First Amendment for that reason, but it is not considered “overbroad.” Overbroad regulations of speech are unconstitutional, but it is not necessarily true that they cannot be enforced against anyone. An overbroad regulation that prohibits a substantial amount of protected speech, judged in relation to the regulation’s plainly legitimate sweep, is facially invalid and may not be enforced against anyone. However, if a regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected. QUESTION ID: L0082 Additional Learning
The minimum level of fault that a private individual must prove in order to prevail in a defamation action arising from a statement regarding a matter of public concern is __________.
A Negligence
B Actual malice
C None
A
Negligence is minimum level of fault that a private individual must prove in order to prevail in a defamation action arising from a statement regarding a matter of public concern. Although fault must be proved in such cases in order to assure that the First Amendment’s freedom of speech is not trampled, when it comes to matters of public concern, the Supreme Court has held that negligence is a sufficient standard.Actual malice was defined by the Supreme Court in New York Times v. Sullivan as: (i) knowledge that the statement was false, or (ii) reckless disregard as to its truth or falsity. The Supreme Court does not apply this onerous standard when a private individual is suing—even regarding statements on matters of public concern. None is incorrect. While a plaintiff in a defamation suit not involving the First Amendment need not prove fault, this is not so in the case of a private individual suing for statements about him regarding a matter of public concern. QUESTION ID: L0096A Additional Learning
Which of the following is not considered a type of “fighting words” that may be forbidden by statute?
A Statements meant to place a person in fear of bodily harm.
B Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning).
C Statements likely to incite physical retaliation.
D “Abusive language.”
D
A statute that prohibits “abusive language” is overbroad and thus not an enforceable fighting words statute. Lots of language that is “abusive” is protected speech. Statements meant to place a person in fear of bodily harm and statements likely to incite physical retaliation are both classic examples of fighting words subject to government regulation. Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning) is considered to be a form of fighting words, even though there is no actual spoken threat. This is because the conduct is intended to convey a message that is unprotected by the First Amendment. QUESTION ID: L0091 Additional Learning
In free speech cases, what is the label given to public property that historically has been open to speech-related activity?
A A community forum
B A limited public forum
C A designated public forum
D A public forum
D
A public forum is public property that historically has been open to speech-related activity. Examples include sidewalks and public parks. A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school). A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate). A community forum is not a term used by courts to describe forums for First Amendment purposes. However, there is a fourth forum designation: nonpublic forum, which is public property not open for speech-related activity. A county office building would be an example of a nonpublic forum except to the extent that it is specifically opened to the public for speech-related activities. QUESTION ID: L0084A Additional Learning
A regulation of speech on a particular topic in a nonpublic forum may not limit the speech to one position, to the exclusion of other positions. This rule reflects the fact that such a regulation must be __________.
A content neutral
B viewpoint neutral
C necessary
D narrowly tailored
B
Speech in a nonpublic forum or limited public forum may be reasonably regulated but the regulation must be viewpoint neutral—it cannot permit presentation of one side of an argument and exclude the other. The term content neutral refers to a regulation that is neutral as to subject matter as well as to viewpoint. The terms narrowly tailored and necessary refer to whether a regulation burdens or does not burden substantially more speech than is required to advance the particular government interest. QUESTION ID: L0087 Additional Learning
A person can become a public figure for purposes of a defamation action in which of the following ways?
A Marrying and divorcing an extremely wealthy person
B Accepting public funds for scientific research
C Through pervasive involvement in the affairs of society
D Engaging in criminal conduct
C
One may become a public figure through pervasive involvement in the affairs of society. A person may be a public figure for all purposes and all contexts if he achieves “general fame or notoriety in the community and pervasive involvement in the affairs of society.” Alternatively, a person also may “voluntarily inject himself or be drawn into a particular controversy to influence the resolution of the issues involved” and thereby become a public figure for a limited range of issues. The Supreme Court has held that marrying and divorcing an extremely wealthy person; accepting public funds for scientific research; and engaging in criminal conduct do not of themselves make the person a public figure. QUESTION ID: L0097 Additional Learning
