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Con Law II > First Amendment > Flashcards

First Amendment Flashcards

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1
Q

A ____ is a court order/administrative system that keeps speech from occurring

A

Prior restraint

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2
Q

T/F
Collateral Bars on speech and publication are the most serious and least tolerable infringement on First Amendment rights.

A

False,

the correct answer is prior restraint

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3
Q

Gov’t encouraging stores not to sell a publication is an example of a ____

A

Prior restraint

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4
Q

Movie censorship is an example of a ____

A

Prior restraint

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5
Q

Gov’t encouraging stores not to sell a publication is an example of a ____

A

Prior restraint

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6
Q

State the first amendment for essay purposes

A

Congress shall make no law …..abridging the freedom of speech.

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7
Q

___ ___ laws target speech based on its communicative content

A

Content BASED

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8
Q

___ ___ laws target all speech, regardless of its message

A

Content NEUTRAL

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9
Q

What level of scrutiny is applied to content based regulations?

A

Strict Scrutiny

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10
Q

What level of scrutiny is applied to content neutral regulations?

A

Intermediate scrutiny

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11
Q

Essentially, ___ ____ regulations are restrictions that are applied differently , depending on the message.

A

content based

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12
Q

If the regulation restricts speech based on viewpoint, such as “offensive”, it is likely a ___ ___ regulation

A

content based

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13
Q

Placement of a permanent monument on public property is considered ___ speech

A

Gov’t

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14
Q

T/F

Gov’t speech is subject to scrutiny under freedom of speech of the 1st Amend.

A

False

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15
Q

What are the 2 major types of prior restraints?

A

Licensing (permits) and injunctions (court order stopping someone from doing something)

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16
Q

A first amendment analysis is only triggered if there is an ____

A

Infringement

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17
Q

If the speech falls into the ___ category, the gov’t can prohibit and punish it, regardless of 1st Amend. rights

A

unprotected

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18
Q

The court in Brandenburg, held that speech can be prohibited if it is : (1) directed at ___ or producing ___ lawless action and (2) ___ to ___ or produce such action

A

inciting
imminent
likely
incite

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19
Q

If no one is listening to the speech, the speech is not considered ____

A

imminent

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20
Q

Fighting words is any speech directed at ___ and likely to provoke a ___ response

A

another

violent

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21
Q

Laws regulating fighting words must be ___, or run the risk of being unconstitutionally vague or over-broad

A

specific

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22
Q

What is the difference between incitement and FW?

A

Incitement = speaker is encouraging the audience

FW= speaker and audience are at odds

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23
Q

As held in CHAPLINSKY, a state can use its ____ ___ to curb speech in the interests of maintaining order and morality

A

police power

24
Q

To determine whether words will be categorized “fighting words”, the test is what men of ___ ___ would understand to be words likely to cause an ___ addressee to ___

A

common intelligence

average

fight

25
Q

T/F

If no one is present when fighting words are spoken, the speech is protected

A

False, still unprotected

26
Q

A statute prohibiting “offensive” language will likely be struck down as ____, and thus unconstitutional

A

over-inclusive

27
Q

Under the 1st Amend, ___ may not regulate categories of unprotected speech such as FW on the basis of ___

A

states

content

28
Q

As held in RAV, a statute that regulates the content of speech on its face will only survive a constitutional challenge if ___

A

it is necessary to serve a compelling state interest

29
Q

___ and ____ are categories of speech never protected by the 1st Amend

A

FW and incitement

30
Q

Gov’t speech will typically be upheld if its ___ ____ to a ___ state interest

A

rationally related

legitimate

31
Q

T/F Freedom of speech is absolute

A

FALSE

32
Q

In order to justify a ___ ___ regulation, the gov’t must show it is necessary to serve a ____ state interest and that it is __ __ to achieve this (also known as___)

A

Content based

compelling

narrowly tailored

STRICT SCRUTINY

33
Q

In order for a regulation to be content-neutral, it must be both ___ and ___ neutral.

A

viewpoint and subject-matter neutral

34
Q

Viewpoint neutral means the gov’t cannot regulate speech based on ____ of the message

A

ideology

35
Q

Subject-matter neutral means the gov’t cannot regulate speech based on ____

A

topic

36
Q

Essentially, ___ ___ is a time, place, and manner restriction or regulation

A

content neutral

37
Q

As held in RENTON, a content based restriction will be deemed content neutral if its motivated by ____

A

secondary effects

38
Q

A regulation that allows speech, but limits it to certain places and manner is a ____ regulation

A

content neutral

39
Q

A law is unconstitutionally ___ if a reasonable person cannot tel what speech is prohibited and what’s permitted

A

vague

40
Q

A law is unconstitutionally ___ if it regulates substantially more speech than the constitutional allows to be regulated

A

overbroad

41
Q

Name the 6 exceptions to prior restraints

A

Military Ciscumstances

War/National security

Preserving for trial

Speech that is Obscene

Speech that incites violence

Contractual Agreement

42
Q

When discussing permits and license, the court will look for: (4 things)

A

1) unfettered discretion
2) procedures in place to challenge the denial of a permit or license
3) is it broad
4) request process

43
Q

What is the 3-part balancing test to determine if a prior restraint used to preserve a trial will be upheld or deemed unconstitutional?

A

1) the nature and extent of the potential harm
2) whether other measures could be taken to mitigate unfairness to the defendant
3) how effective the prior restraint would be in preventing the harm

44
Q

T/F

The gov’t may not outlaw symbols of hate

A

TRUE

45
Q

T/F Expression of hate is not protected speech

A

FALSE

46
Q

In hostile audience cases, speech will be protected unless it is shown that the speech is likely to produce a ___ and ____ ___ of ___ ___

A

clear
present danger
imminent evil

47
Q

Speech that presents a clear and present danger of imminent evil must also rise far above ___, ___, or ____

A

inconvenience
annoyance
unrest

48
Q

The government may regulate obscene material which: (5 elements)

A

1) Depicts or describes sexual conduct
2) Which conduct is defined specifically by state law
3) Would be found to appeal to the ‘prurient interest’ by average person
4) Portrays sexual conduct in a patently offensive way &
5) Has no serious literary, artistic, political or scientific value

49
Q

Obsence material must have serious ___, ___, ___ , or ____ value to be protected, using a ____ standard.

A

literary,

artistic,

political

scientific

national

50
Q

___ material is material which deals with sex in a manner appealing to ___ _____

A

obscene

prurient interest

51
Q

Obscene material has the tendency to excite ___ thoughts

A

lustful

52
Q

A state may prohibit the distribution of material depicting ____ engaged in sexual conduct without requiring that the material be ____

A

children

obscene

53
Q

T/F

False Advertising is protected by the 1st Amend.

A

False

54
Q

In determining whether a regulation of commercial speech is valid, what is the 4 step process used by SCOTUS?

A

1) First, determine whether commercial speech concerns a lawful activity and is not misleading/fraudulent. If it is a lawful activity & not misleading or fraudulent, the regulation will be valid only if it:
2) Serves a substantial government interest
3) Directly advances the asserted interest; and
4) Is narrowly tailored to serve substantial interest.

55
Q

___ ____is protected by the first amendment so long as it is not misleading or doesn’t promote illegal product or enterprise.

A

Commerical Speech

56
Q 
Commercial speech is communication which:
Does no more than propose a \_\_\_ \_\_\_ or 
is an \_\_\_\_ and 
references specific products and 
is mailed for \_\_\_\_\_
motivations
A

Commercial Transaction

Advertisement

Economic

57
Q

What is the Hudson 4-prong test for commercial speech?

E.A.D.M

A

1) Is the expression protected by the 1st Amen?
2) Is the asserted gov’t interest substantial?
3) Does the regulation directly advance the governmental interest asserted?
4) Is the regulation more extensive than is necessary to serve that interest?

Con Law II (6 decks)

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