Final Exam

Question 1

Content-Based Regulation

Answer 1

Subject to strict scrutiny, meaning it must be narrowly tailored and necessary to serve a compelling government interest.

Question 2

Content-Neutral Restriction

Answer 2

These are normally Time, Place, and Manner restrictions, intermediate scrutiny is used.

Question 3

Secondary Effects Doctrine

Answer 3

A speech regulation will be treated as content-neutral if its purpose is to control the secondary effects of speech, even if it facially discriminates according to speech content.

Question 4

Traditional Public Forum (park, sidewalk, etc.)

Answer 4

Strict Scrutiny for content-based restrictions, intermediate scrutiny for content neutral

Question 5

Limited Public Forum (designated by govt. as forum)

Answer 5

Strict Scrutiny for content-based restrictions, intermediate scrutiny for content neutral. Selective restriction of access must be viewpoint neutral.

Question 6

Non-public forum

Answer 6

Regulations that restrict speech must be reasonably related to a legitimate government interest. Any selective restriction must be viewpoint-neutral

Question 7

Central Hudson Test

Answer 7

(1) Does the speech advertise illegal activities or constitute false or deceptive advertising that is unprotected by the First Amendment? (2) Is the government’s restriction justified by a substantial government interest?
(3) Does the law directly advance the government’s interest?
(4) Is the regulation of speech no more extensive than necessary to achieve the government’s interest?

Question 8

Unprotected Categories of Speech (6)

Answer 8

a) Incitement
b) Defamation
c) Fighting Words
d) True Threats
e) Obscenity
f) Offensive Speech

Question 9

Test for Incitement

Answer 9

a) speech is directed at producing imminent lawless action and
b) is likely to produce such action

Question 10

Does mere advocacy for violence count as incitement

Answer 10

No, in Brandenburg v. Ohio, it was mere advocacy for violence and did not count as actual incitement.

Question 11

Defamation of a public figure

Answer 11

Must prove that the defendant acted with actual malice

Question 12

Definition of actual malice

Answer 12

With knowledge or reckless disregard for the truth or falsity of the defamatory statement

Question 13

Fighting words must be

Answer 13

words that are likely to provoke an ordinary person to immediate violent response. “A direct personal insult or an invitation to exchange fisticuffs”

Question 14

True Threats

Answer 14

Statements intended to communicate a serious intent to commit unlawful violence to a specific individual or group

Question 15

Obscenity definition

Answer 15

1. The average person, applying contemporary community standards, would find that the work as a whole appeals to the prurient interest (i.e., excessive interest in sex or sexuality)
2. The work depicts or describes in a patently offensive way, sexual conduct as defined by state law; and

3.The work as a whole lacks s
erious literary, artistic, political, or scientific value

Question 16

Child Porn

Answer 16

Does not matter if this meets the definition of obscenity, it is never protected by the first amendment.

Question 17

How to determine if it’s speech or expressive conduct

Answer 17

Determine if there was intent to convey a particularized message through the conduct and the likelihood that the message would be understood by people viewing it

Question 18

If it is expressive conduct and speech, can it still be regulated?

Answer 18

yes

Question 19

O’brien test

Answer 19

A government regulation is sufficiently justified if
(1) it is within the constitutional power of the government,
(2) it furthers an important or substantial governmental interest,
(3) the governmental interest is unrelated to the suppression of free expression, and
(4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Question 20

Can student speech in schools be regulated?

Answer 20

Generally, public schools may prohibit speech that substantially interferes with or disrupts the educational environment or interferes with the rights of other students

Question 21

Hazelwood Rule of Law

Answer 21

Under the First Amendment, educators may exercise editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

Question 22

Fraser rule of law

Answer 22

Under the First Amendment, school officials may properly punish student speech with suspension if they determine that speech to be lewd, offensive, or disruptive to the school’s basic educational mission.

Question 23

Tinker rule of law

Answer 23

In a public-school setting, prohibiting an expression of an opinion is unconstitutional unless there is a specific showing that engaging in the forbidden conduct would materially and substantially interfere with appropriate discipline in the operation of the school or interfere with the rights of others

Question 24

Can the speech of a government employee be restricted?

Answer 24

Yes. If they are speaking in the course of their official duties, then speech (even on a matter of public concern) may be regulated

Question 25

What if the govt. employee is speaking as a private citizen on a matter of public concern?

Answer 25

Generally, this can’t be regulated. If they are fired for language like this then the court will use a balancing test to determine if the speech hindered the persons performance or their bosses ability to run the workplace.

Question 26

Can the government subjectively charge a higher fee or deny a license or permit based on the content of the message?

Answer 26

No

Question 27

Can the government restrict speech before it is said?

Answer 27

No. This is called a prior restraint and is impermissible. These will be evaluated under strict scrutiny

Question 28

When is a law unconstitutionally vague?

Answer 28

A law is unconstitutionally vague if people of common intelligence are forced to guess at its meaning

Question 29

When will a law be struck down as unconstitutionally overbroad?

Answer 29

As it is written, a law will “chill” constitutionally protected speech. The overbreadth must be substantial