Constitutional Law LAST PUSH Flashcards
Freedom of Speech - Speech IS
includes words, symbols, and expressive conduct
Freedom of Speech - Expressive Conduct
any kind of conduct that is either inherently expressive or conduct that is:
(1) intended to convey a message and
(2) reasonably likely to be perceived as conveying a message
Freedom of Speech - Incitement
(1) intended to produce imminent lawlessness action and
(2) it is likely to produce such action
Freedom of Speech - Obscenity
speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person
(1) appeals to the prurient interest in sex, using a contemporary community standard
(2) patently offensive under contemporary community standard
(3) lacks serious value using national, reasonable person standard
Defamatory Statements - Public Official, Public Concern, Public Figure
if the statement is about a public official, public figure, or involves a matter of public concern, the First Amendment requires the plaintiff prove all of the elements of defamation plus falsity and some degree of fault
Public Official or Public Figure Suing
regardless of whether it is a public or private concern, the degree of fault required to show is actual malice
Actual Malice
plaintiff must prove by clear and convincing evidence that the alleged defamatory speech was made with:
(a) knowledge that it was false or
(b) reckless disregard as to its truth or falsity
Public Official
(1) holding or running for elective office
(2) public employees in positions of public importance
Public Figure
(1) assumed roles of prominence in society
(2) achieved pervasive fame and notoriety
(3) thrust themselves into the particular public controversies to influence their resolution
Private Figure Suing on Public Concern
plaintiff can only recover actual damages if the plaintiff only shows negligence - punitive or presumed must show actual malice
Commercial Speech
commercial speech is not protected if it is (1) false, (2) misleading, or (3) about illegal products or services
Commercial Speech Regulations Upheld
Regulation of commercial speech upheld only if:
(a) serves a substantial government interest
(b) directly advances that interest, and
(c) is narrowly tailored to serve that interest
Content Based Regulations
subject to strict scrutiny and they are presumptively unconstitutional
Content Neutral Regulations
generally are subject to intermediate scrutiny; that is, they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary
Traditional Public Forms
public property that has historically been open to speech related activities
Designated Public Forms
not historically open to speech related activities but which the government has thrown open to speech related activities on a permanent or limited basis by practice or policy
Content Based Regulation in Traditional or Designated Public Form
subject to strict scrutiny
Content Neutral Based Regulation in Traditional or Designated Public Form
only needs to meet the intermediate scrutiny standard
Content Neutral Based Regulation in Traditional or Designated Public Form Intermediate Scrutiny
(a) narrowly tailored to serve an important government interest and
(b) leave open alternative channels of communication
Limited Public Form
government forums not historically open generally for speech and assembly but open for a specific speech activity (like a school gym for a debate, public university funding student publication)
Nonpublic Form
government property not historically open generally for speech and assembly and have not been held open for specific speech activities, such as military’s bases or government workplaces
Viewpoint Neutral Based Regulation in Limited Public Form or Nonpublic Form
regulations are valid if they are:
(a) viewpoint neutral and
(b) reasonably related to a legitimate government purpose
Viewpoint Based Regulation in Limited Public Form or Nonpublic Form
strict scrutiny
