First Amendment Flashcards
Free Speech:
Content-Based Restrictions
vs.
Content-Neutral Restrictions
Content-Based: Regulations regarding the content of protected
speech (subject matter, viewpoint). Gov’t MUST satisfy strict
scrutiny (narrowly tailored to achieve a compelling government
interest AND it used the least restrictive means).
Content-Neutral: Gov’t may regulate the time, place, and matter of
content-neutral speech if the regulation satisfies intermediate scrutiny
(narrowly tailored to achieve a significant government interest AND
leave open alternate channels of communication
Free Speech:
Public Forum
vs.
Designated Public Forum
vs.
Non-Public Forum
Public Forum: Traditionally available to the public for free
speech.
Designated Public Forum: Not traditionally available for free
speech, BUT the government chooses to make it available.
Treated the same as a Public Forum.
Non-Public Forum: Public spaces that have traditionally been
limited for free speech. The government may regulate speech
here if the regulation is reasonable AND viewpoint neutral.
Free Speech:
When are licensing requirements permitted?
If:
1) The government has an important reason for licensing;
2) Specific, articulated standards are used to grant the
licenses to remove discretion of the licensing body; AND
3) Procedural safeguards are in place.
Unprotected Speech:
What are fighting words?
Words, which by their very utterance:
a) Inflict injury; OR
b) Tend to incite an immediate breach of the peace.
*The 1st Amendment DOES NOT protect fighting words or true
threats.
Unprotected Speech:
When does speech Incite Imminent Lawless Action?
When it:
1) Advocates the use of force or illegality;
2) It is directed to inciting or producing imminent lawless
action; AND
3) It’s likely to incite or produce such an action.
*Speech that Incites Imminent Lawless Action is NOT protected by
the 1st Amendment and may be outlawed.
Unprotected Speech:
Obscenity is NOT protected under the 1st
Amendment.
What speech/material is characterized as obscene?
When:
1) It appeals to the prurient interest of an average person
applying today’s community standards;
2) It is patently offensive under the laws prohibiting
obscenity; AND
3) It lacks any serious, artistic, literary, or scientific value
based on a national standard.
Commercial Speech:
When may the government regulate truthful, nonmisleading
commercial speech?
If the regulation:
1) Directly advances;
2) A substantial government interest; AND
3) Is no more restrictive than necessary.
*False or misleading speech is NOT protected under the 1st
Amendment.
Free Speech – Public Schools
Schools are given a greater latitude to regulate
speech. When are school officials justified in the
suppression of speech?
They must prove that the conduct would materially and
substantially interfere with the operation of the school.
Free Speech – Gov’t Employees
For a government employee’s speech to be
Constitutionally protected, what is required?
The employee must speak:
1) As a citizen; AND
2) On a matter of public concern.
*An employee’s statements made pursuant to their official duties are
NOT protected
Free Speech – Expressive Conduct
When may expressive conduct or symbolic speech
be regulated?
If:
1) The government has an important purpose;
2) The purpose is independent of the suppression of speech;
AND
3) The restriction is no greater than necessary to achieve
that purpose.
Free Speech – Prior Restraints
What is a prior restraint on speech?
When the government attempts to prohibit speech before it
happens through a court order or licensing requirement.
*Prior restraints are generally disfavored and unconstitutional,
and court orders preventing speech MUST satisfy Strict
Scrutiny.
When is a statute unduly vague or overbroad?
A statute is unduly vague of it does not put the public on
reasonable notice as to what is prohibited.
A statute is overbroad if it regulates more speech than is
Constitutionally permitted.
*A defendant CANNOT be convicted under a law that is deemed
overboard or vague
Freedom of the Press & Defamation:
What additional element is needed to prove a
Defamation claim against a public figure or public
official?
For a Public Figure, the plaintiff needs to prove that the
defendant spoke with either:
a) Recklessness as to the truth of the statement; OR
b) Knowledge of its falsity.
Freedom of the Press & Defamation:
What additional element is needed to prove a
Defamation claim against a private figure speaking
about a matter of public concern?
For a Private Figure speaking about a matter of public
concern, the plaintiff needs to prove that:
The speaker was negligent
Freedom of the Press:
The 1st Amendment protects the press from liability
when publishing what?
1) Truthful private facts;
2) On a matter of public concern;
3) Where such information is legally obtained; AND
4) There is no knowledge that any information was obtained
illegally.
*The 1st Amend. doesn’t protect the press from liability for violating
generally applicable laws.
