Expressive Freedoms

Question 1

Content Based Regulations of Speech

Answer 1

1) Content based restrictions
2) on the subject matter or the viewpoint of speech
3) must meet strict scrutiny

Question 2

Content Neutral regulations of speech

Answer 2

1) Content neutral regulations
2) that burden expressive conduct
3) generally only need to meet intermediate level scrutiny
4) EXCEPT for unprotected, less-protected, and government-funded speech which may be regulated on subject matter so long as they are viewpoint neutral

Question 3

Prior restraints

Answer 3

1) prevents speech before it occurs

2) strict scrutiny

Question 4

Licensing & permitting authorities for expressive activities

Answer 4

1) must operate under narrowly drawn and clear standards
2) that leave no discretion
3) must be opportunity for prompt judicial review of license or permit denial

Question 5

Void for Vagueness: speech

Answer 5

1) a regulation is void for vagueness
2) if a reasonable person
3) cannot tell form the terms of the law what is prohibited and what is permitted

Question 6

Overbroad: speech

Answer 6

1) regulation is overbroad

2) if it affects substantially more speech than necessary to meet govt’s legitimate purpose

Question 7

Unduly discretionary: speech

Answer 7

1) regulation is unduly discretionary
2) if it gives officials inadequate standards
3) for applying the law’s requirements

Question 8

Issue Trio: speech

Answer 8

1) vagueness
2) overbroad
3) unduly discretionary

Question 9

Freedom to not speak

Answer 9

1) govt cannot force you to speak or act in a way implying speech like saluting a flag
2) but the govt can force you to pay $ that gets distributed to speech that you don’t agree with so long as it distributes the $ in a viewpoint neutral way

Question 10

Symbolic Speech

Answer 10

In order to regulate, govt needs:

1) important purpose
2) unrelated to suppression of the message
3) burden on communication is no greater than necessary to achieve that purpose

Question 11

Anonymous speech

Answer 11

1) generally protected
a) cannot require protest literature to be signed by real name
b) govt employees don’t have to release all political or social organization memberships if not relevant to job
2) but can release signatories on referendums or initiatives

Question 12

Unprotected speech

Answer 12

1) incitement of illegal conduct
2) fighting words
3) true threat
4) obscenity and sexually oriented speech
5) defamation
6) fraud

Question 13

Incitement of Illegal Conduct

Answer 13

The illegal conduct must be

1) likely
2) imminent
3) intended by the speaker

Question 14

Less protected speech

Answer 14

commercial speech

Question 15

Fighting words

Answer 15

1) abusive words
2) directed personally to the hearer
3) that are likely to produce immediate and physically violent reactions
4) in the average person
NOTE: not just annoying or offensive, watch for hate-speech laws b/c they are often invalid

Question 16

True Threat

Answer 16

1) statement
2) that a reasonable person would interpret under the circumstances
3)as the D’s serious declaration of intent to murder or inflict bodily harm
IRRELEVANT HERE:
threat directly to intended target, threat was made with knowledge that it would be communicated to the target, threat in public or private conversation

Question 17

Obscenity and Sexually-Oriented Speech

Answer 17

1) could be the production, sale, or distribution
2) material must describe or depict sexual conduct that taken as a whole
A) appeals to the prurient interest in sex, using community standards
B) is patently offensive using community standards
C) lacks serious value of a literary, artistic, political, or scientific nature using a national reasonable person standard
NOTE: must consider entire work, not just a paragraph or sentence, when applied to materials for minors the same test applies but the standards are to minors

Question 18

Child Porn

Answer 18

1) production, distribution, sale, or possession
2) materials depicting actual minors engaging in sexual conduct
3) may be banned without meeting 1st amend. test for obscenity or sexually-oriented speech
NOTES:
Does not include “virtual children” porn unless seller is holding it out or advertising it to be real child porn under the pandering doctrine

Question 19

Zoning and 1st amend

Answer 19

1) localities may zone location of adult bookstores, ect.
2) So long as they are not completely zoned out of locality and there is a possibility of them being allowed somewhere
BUT
Nude dancing may be banned under generally applicable public nudity regulations

Question 20

Fraud

Answer 20

1) punishing intentional misrepresentation
2) upon which a victim relied and
3) which caused actual injury
OFTEN CONSTITUTIONAL even though content based
BUT govt cannot ban false statements of facts for the sole reason of promoting truthful discourse

Question 21

Commercial speech

Answer 21

1) Illegal activities: if it is promoting an illegal activity or is false or misleading, it is unprotected speech that may be prohibited
2) Truthful advertising with an inherent risk of deceiving or misleading the public may be prohibited
3) regulations on Truthful advertising for lawful products or services, must meet intermediate level scrutiny

Question 22

Traditional and designated forum regulations

Answer 22

1) regulation of time, place or manner of speech and assembly
2) in traditional or designated public forums
3) only permitted if the regulation is content-neutral both to subject and viewpoint
4) is narrowly tailored
5) serves an important government interest
6) leaves open alternative avenues of communication

Question 23

monuments in park

Answer 23

govt speech so rational basis review

Question 24

Limited public or non-public forum regulations

Answer 24

1) regulation of time, place, or manner of speech and assembly
2) in limited public or non-public forums
3) is permitted if the regulation is view-point neutral
4) and meets rational basis review

Question 25

Private property regulations (speech)

Answer 25

1) reasonable regulations
2) limit access to private property
3) for speech or assembly purposes
EXAMPLE: privacy law that requires homeowner’s permission before solicitor may ring doorbell
GENERALLY: no 1st amend. right to use for speech purposes

Question 26

Campaign Funding

Answer 26

1) govt cannot limit the amounts that a person may spend on his/her own campaign or on independent expenditures (spending for political expression that is not coordinated in any way with campaign or campaign committee, including from corporations)
2) govt may limit contributions to political candidates, and may require that candidates disclose the names of contributors and the amounts they contributed
3) govt cannot put a cap/ceiling on total contributions

Question 27

Freedom of the Press

Answer 27

Generally, press have the same free speech rights as the general public.

Question 28

Regulations or taxes on press

Answer 28

1) general regulations or taxes imposed on businesses apply to media as well
2) special regulations or taxes targeting the media specifically must meet strict scrutiny

Question 29

Media publication of unlawfully obtained info

Answer 29

media may publish info originally obtained unlawfully if:

1) information is truthful and a matter of public concern
2) media did not obtain it unlawfully or know who did
3) original speaker of truthful info had reduced expectations of privacy

Question 30

Standards of review for media

Answer 30

1) content based of all media = strict scrutiny
2) content neutral of print, internet, and cable TV = strict scrutiny
3) content neutral of radio and TV broadcasts = intermediate level scrutiny (allows FCC to regulate broadcasts for indecencies)

Question 31

association for political activities

Answer 31

fundamental right, must meet strict scrutiny

Question 32

Association for illegal activities

Answer 32

May be prohibited provided the govt proves that the person

1) actively participated in the group
2) knowing its illegal activities
3) specifically intending to further those illegal activities

Question 33

anonymous association

Answer 33

laws requiring disclosure of members that may chill association membership = strict scrutiny

Question 34

discriminatory membership in an association

Answer 34

1) laws forbidding groups to discriminate are invalid if they interfere with the groups expressive activity
2) BUT govt is not required to subsidize discriminatory groups on the same terms as an non-discriminatory group

Question 35

Government employees: speech

Answer 35

1) public employee or Independent contractor
2) cannot be fired or disciplined
3) for expressing opinions in public as a citizen on matters of public interest
4) unless the speech or association undermines the employer’s authority or disrupts the employer’s policies
5) 1st amend. does not protect statements made in an employee’s or contractor’s official capacity within the workplace

Question 36

Loyalty oaths: speech

Answer 36

allowed so long as they are not overbroad or vague (think upholding constitution joke)

Question 37

free exercise clause

Answer 37

1) govt cannot
2) specifically punish or interfere with religious beliefs
3) BUT may incidentally burden religious practices by general regulations of conduct
EXCEPTIONS:
a) denials of unemployment after worker quit job for religious reasons
b) allowing amish to home-school children under mandatory public education system

Question 38

establishment clause

Answer 38

1) govt discrimination against religion or among religions = strict scrutiny
2) non-discriminatory regulation follow lemon test
a) secular purpose
b) primary effect must not advance or inhibit religion
c) no excessive governmental entanglement

Question 39

Lemon test

Answer 39

1) regulation or act must have a secular purpose
2) it’s primary effect must not advance or inhibit religion
3) it must avoid excessive governmental entanglement with religious org./admin./bureaucracy

Question 40

financial benefits to religious org

Answer 40

govt must remain neutral between religious and secular private school choices, BUT parents may use vouchers at religious schools b/c they are an intervening force that breaks the causal link

Question 41

religious activity in public schools

Answer 41

1) sponsorship of religion not Ok

2) accommodation of religious exercise under “equal access rule” required