Constitutional Law - Speech Flashcards
Unprotected Speech
• The “freedom of speech” protected by the 1st Amendment does NOT include certain categories of unprotected speech:
- Incitement
- Fighting words
- Obscenity
- Child pornography
- Defamation with actual malice
- Commercial speech (false, misleading, or illegal)
Incitement
• Not protected speech
• Advocacy of lawless action that is:
1. Intended to produce imminent lawless action and
2. Likely to produce such action
*Mere advocacy of lawlessness is protected speech.
Example:
• Urging angry KKK members in front of black rape suspect’s home to take action – not protected speech
• Urging KKK members at rual rally to take “revengence” if government continues oppressing the white race – protected speech - not clear intent to rally and no likelihood or imminent danger
Fighting words
- Unprotected speech
- Words likely to provoke immediate violent response
Examples:
• Calling someone in a bar argument a mother f* to their face. – Not protected speech
• Wearing a jacket in the hallway of courthouse that says “F* the Draft.” – Protected because not directed at anyone, just walking in the hall.
True Threats
- Unprotected Speech
- Words intended to convey to someone a serious threat of bodily harm.
Examples:
• Burning cross in black neighbor’s yard – unprotected – conveyed to someone
• Burning cross at KKK rally – protected – not conveyed to someone
***Obscenity
• Unprotected speech
TEST: Depiction of sexual conduct that taken as a whole, by contemporary community standards.
1. Appeals to the prurient (meant to turn you on) interest in sex,
2. Is patently offensive (judge by local standard), AND
3. Lacks serious social value by national standards.
- *Mere nudity, soft-core pornography, and dirty words are not obscene
- *Right to privacy extends to possession of obscenity at home, which may not be banned
- *Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning.
Child Pornography
• Unprotected Speech
TEST: Depiction of children engaging in sexual conduct, whether or not obscene.
• Must be actual children – NOT adults acting as children or virtual actors
• In-home possession may be banned
Defamation
Unprotected if:
Public official, public figure, any subject:
1. Actual Malice →Any damages are allowed
Private figure, public concern:
- Actual malice → Presumed and punitive damages allowed
- Negligence → Actual damages allowed
Private figure, private concern:
1. No actual malice → Any damages allowed
Actual Malice Test:
- Knowledge of falsity OR
- Reckless disregard of truth
Commercial Speech
Unprotected when false, misleading, or illegal products. All other commercial speech protected.
TEST: Intermediate Scrutiny
- Substantial government interest (i.e. consumer protection)
- Narrowly tailored (reasonable fit rather than least restrictive)
Examples:
• Banning attorneys from in person solicitation for pecuniary gain – valid because substantial interest in protecting the public – attorneys known to overpower
• Banning accountants from in person solicitation for pecuniary gain – not valid because no substantial interest, not known for overpowering clients
General Speech Restrictions – How Reviewed:
Content based: restrictions suppress speech because of the message or harm that message may produce (censorship)
• Apply Strict Scrutiny – is the ban narrowly tailored (least restrictive) to governments compelling interest.
Content-neutral: restrictions suppress speech for reasons unrelated to the message.
• Apply Intermediate Scrutiny – is the ban narrowly tailored (substantially related) to government’s important interest.
Examples:
• Ban on flag burning – CB - Not valid
• Burn ban during dry summer – CN – valid
• Ban on noisy neighborhood – CN – valid
• $1000 cap on campaign contributions – CB – Valid
• $10 million cap on campaign expenditures – CB – Not valid (can’t limit spending) ($=speech)
Types of Government Property
Public Forums: government property open to public for all kinds of expressive activity by tradition or purposeful design.
• Examples: Parks, streets, sidewalks, college kiosks
• NOTE: Facebook NOT public forum – government not own – owned by Zuckerman and publicly traded
Nonpublic Forums: Government property not open generally for public speech, but limited to speech related to purpose of property.
• Examples: Classes, mailboxes, airports, DMV, Post office
Test applied to speech on government property:
Public Forums:
• Content Based:
• Strict Scrutiny – narrowly tailored (least restrictive) to government compelling interest (usually invalid – State BOP)
• Content Neutral:
• Intermediate Scrutiny – narrowly tailored (substantially related) to government important interest (usually valid – state BOP)
Nonpublic Forums:
• Reasonable in light of nature of forum
• Viewpoint Based: Limits speech to one-side of subject
• Strict Scrutiny - narrowly tailored (least restrictive) to government compelling interest (usually invalid – State BOP)
Examples:
• Ban on overnight sleeping in parks – public forum – content neutral – valid
• Ban on political signs in courtroom – NP – CB – Valid
• Ban on anti-government protests inside congressional viewing gallery – NP – VB – Not valid, no compelling interest
Speech within Public Schools
Personal Student Speech:
• Cannot be censored absent evidence of substantial disruption.
• EXCEPTION: Speech promoting illegal drug use does not require showing any disruption (can be shirt that says smoke pot)
School Speech: Includes teacher or co-opted student speech
• Can be censored if reasonably related to legitimate teaching concern
Examples: • Suspension for wearing black armband in class without incident to protest war – not valid • Suspension for passing notes in class – valid • Censorship of age inappropriate newspaper article about student pregnancy for high school journalism class – valid
Public Employment
Deals with what public employee says on the job.
Unprotected:
1. Matters of private concern
2. Pursuant to official duties – what hired for
Protected:
1. Matters of public concern (not made pursuant to official duties)
TEST: Balancing speech value v. state interest in efficient operation.
Examples:
• Ban on dirty jokes – valid
• Dismiss prosecutor for reporting wrongdoing to superior as required by office policy – not valid, part of job
• Dismiss teacher for letter to editor criticizing school spending - not valid, public concern and not part of job
Freedom of speech and
Political Patronage
Public employees may NOT be hired or fired based on political affiliation or expression.
• Exception:
• High-level policy-makers and advisors – president, his advising body, etc….
Vagueness – voids law if:
TEST:
• If person of common intelligence cannot tell what is prohibited and what is permitted.
