Final Exam Flashcards
Content-Based Regulation
Subject to strict scrutiny, meaning it must be narrowly tailored and necessary to serve a compelling government interest.
Content-Neutral Restriction
These are normally Time, Place, and Manner restrictions, intermediate scrutiny is used.
Secondary Effects Doctrine
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.
Traditional Public Forum (park, sidewalk, etc.)
Strict Scrutiny for content-based restrictions, intermediate scrutiny for content neutral
Limited Public Forum (designated by govt. as forum)
Strict Scrutiny for content-based restrictions, intermediate scrutiny for content neutral. Selective restriction of access must be viewpoint neutral.
Non-public forum
Regulations that restrict speech must be reasonably related to a legitimate government interest. Any selective restriction must be viewpoint-neutral
Central Hudson Test
(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?
Unprotected Categories of Speech (6)
a) Incitement
b) Defamation
c) Fighting Words
d) True Threats
e) Obscenity
f) Offensive Speech
Test for Incitement
a) speech is directed at producing imminent lawless action and
b) is likely to produce such action
Does mere advocacy for violence count as incitement
No, in Brandenburg v. Ohio, it was mere advocacy for violence and did not count as actual incitement.
Defamation of a public figure
Must prove that the defendant acted with actual malice
Definition of actual malice
With knowledge or reckless disregard for the truth or falsity of the defamatory statement
Fighting words must be
words that are likely to provoke an ordinary person to immediate violent response. “A direct personal insult or an invitation to exchange fisticuffs”
True Threats
Statements intended to communicate a serious intent to commit unlawful violence to a specific individual or group
Obscenity definition
- 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)
- 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
Child Porn
Does not matter if this meets the definition of obscenity, it is never protected by the first amendment.
How to determine if it’s speech or expressive conduct
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
If it is expressive conduct and speech, can it still be regulated?
yes
O’brien test
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.
Can student speech in schools be regulated?
Generally, public schools may prohibit speech that substantially interferes with or disrupts the educational environment or interferes with the rights of other students
Hazelwood Rule of Law
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.
Fraser rule of law
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.
Tinker rule of law
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
Can the speech of a government employee be restricted?
Yes. If they are speaking in the course of their official duties, then speech (even on a matter of public concern) may be regulated
What if the govt. employee is speaking as a private citizen on a matter of public concern?
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.
Can the government subjectively charge a higher fee or deny a license or permit based on the content of the message?
No
Can the government restrict speech before it is said?
No. This is called a prior restraint and is impermissible. These will be evaluated under strict scrutiny
When is a law unconstitutionally vague?
A law is unconstitutionally vague if people of common intelligence are forced to guess at its meaning
When will a law be struck down as unconstitutionally overbroad?
As it is written, a law will “chill” constitutionally protected speech. The overbreadth must be substantial
